See the essence of illegality "harmony but not sameness in criminal law

"Confucius Analects Zi Lu", in: "gentleman, harmony but not sameness, Sims with the same". It is said, the gentleman in interpersonal communication can often keep a friendly and harmonious relations with others, but in the specific issues are not consistent with the others. A habit to in view of the problem on the psychology of others, along with others speech, but in the heart does not have a harmonious and friendly attitude.

In this view, between the person and the person is not on specific issues consistent, the key lies in the different values of. A person's value depends on the individual growth environment, education and other factors, therefore, requires two people to value the same is almost impossible. But each of the different people are able to live in the society, in this view, the main point is to establish the legal system, national laws passed to restrict people's behavior. Everyone can freedom of action within the limits prescribed by law, but the law can not be crossed the line, otherwise you will be punished by law. But the law does not punish immoral things, the law only punishment in violation of the law itself, as in violation of the law or not does not violate the moral involves the relationship between law and moral problems. Since ancient times, the relationship between law and morality have been countless discussions, but no matter how much difference between the two, one of the most obvious is the legal adjustment people external behavior, and more emphasis on the adjustment of individual's inner moral. Perhaps some people will disagree, practice in many places that laws are not necessarily to punish violations of the law. Is there such a thing, from the perspective of jurisprudence, we think there are two reasons:

(a) the different understanding of the rule of law logic structure

The logical structure of law for the rule of law has three factors and two factors, three factors. Three elements of view, regulations, by assumption, the sanctions of three parts. Two factor theory thinks, the rule of law by the behavior mode and legal consequences. The three new elements that, the rule of law by the behavior patterns, conditions and consequences attributed.

Three factors in words, and sanctions have obvious logic relation of inclusion, while the doctrine expressed a strong the penalty (high and primarily) legal concept. And the two factors and three new elements in the legal consequences and did not express the penalty of legal concepts, but stressed the need to bear the corresponding legal responsibility of the legal consequence of.

"Laws do not necessarily to punish violations of law" in this view we have one-sided. Not the law does not punish, may punish way not everyone thought the penalty. Because of the legal liability of the illegal acts are criminal liability, civil liability and administrative liability. As is known, the criminal responsibility of the eye-catching, but the general civil liability, administrative liability and criminal liability, compared, deterrence is relatively much smaller. According to the "PRC Criminal Law" thirty-second, thirty-three, thirty-four, punishments are divided into control, detention, imprisonment, fines, prison, death penalty, deprivation of political rights, and confiscation of property. According to "the people's Republic of China tort liability law" Fifteenth article, shall bear tort liability way: the cessation of the infringement, eliminate the obstruction, eliminating the danger, the return of property, restitution, compensation, apology, eliminate the impact, restore the reputation. According to the "administrative punishment law" article eighth, the administrative punishment is divided into: warning, fines, confiscation of illegal income, the confiscation of illegal property, shall be ordered to suspend production or business, suspend or revoke the license and business license, administrative detention. Civil and administrative punishment difficult to meet people's legal expectations too high (for breaking the law behavior of heavier punishment or penalty).

(two) the legal difference effect

The life of law is implemented. In order to show that the law through the implementation of law is not a mere scrap of paper, but a living reality reflect. Law enforcement does not necessarily produce the corresponding effect. This involves the legal effectiveness[1]The problem. In abiding by the constitution, laws and regulations of the situation, suit one's measures to local conditions to develop appropriate local regulations and local development. By understanding, execution, in different environments, application will vary.

The application of the law not only need to establish the people's legal consciousness and the trust in the law (the law alone is not enough), also need the government to vigorously promote the implementation of. Therefore, "laws do not necessarily to punish violations of law" does exist, but this is not the law itself, which is the legal effect. The law to achieve a certain effect, to strengthen people's legal consciousness and the government to promote the implementation of the two aspects are essential, indispensable.

The law contains different kinds of people, to accommodate a variety of different behavior. As long as people don't do illegal things, the law will not be on people for the corresponding punishment, the law defines the scope for the freedom of behavior of the people. But in the end what is illegal? Different people have different views. As everyone knows that, illegal means in violation of relevant laws and regulations. But exactly what law prohibited, people will have different understanding. From the angle of the criminal law, awareness of the illegal nature is mainly divided into two theories: the consequence without value and conduct without value.

(a) the result has no value

Results no value theory, substantive illegality is against the interests of the law. Results no value theory is concerned: against the interests of the law or threatening behavior reality caused by negative evaluation (risk) for.

(two) conduct without value

Conduct without value theory, substantive illegality is the social ethics behind violate criminal law. Act without value theory is concerned, the negative evaluation by the state of the cutting behavior itself.

"Harmony but not sameness emphasizes the people freedom of speech, behavior and not be influenced by others speech, behavior, it is not restrained by social norms and unity, and this is consistent with the result of no value theory. The famous Japanese criminal law experts Hirano Ryuichi think, modern countries have different value to the people should be tolerant, method of the task is to protect with different values are an indispensable prerequisite for the common life. Because the penalty is a major pain, not maintain an appropriate means of social ethics; but in the modern society, the ethical right is relative; to maintain social ethics as the task of criminal law, the criminal law is not only the excessive demands, but also easy to act under the name of others to their own values; the principle of criminal law only in violation of another's will, to others interests caused significant damage or danger to be applicable. Act without value theory emphasizes on social ethics and compliance, people violate the social ethics even caused no damage to legal interests will bear the corresponding legal responsibility. The most typical example is mistakenly sugar when it to others to eat, no theory of value that the behavior has caused no damage, but has violated the social ethics, the attempted intentional homicide. Results no value theory is that the behavior has violated the social ethics, but caused no damage to the corresponding legal interest, should belong to.

Results no theory of value and behavior without value in understanding many specific problems have significantly different. I recently saw a "drug birthday feast" video on the Internet, many commentators think the drug addicts behavior also belong to the crime, should be stipulated in the criminal law. Consider, for these people the view author discovery, no theory of value which is the. Suggestions have been made with drug crimes, but not by the criminal law. The main reason and puts forward the viewpoints with drug crimes lies in the violation of social ethics. But if no reasons that the drug is positioning for the crime, then the adverse effects of attack is too large will. According to the documentary "drugs" reason investigation shows that 1216 drug addicts drug: curious accounted for 68.6%, friends, drug traffickers lure accounted for 15.4%, take the initiative to seek stimulation accounted for 16%. From the data we can see, most people fall into a wrong path, the subjective and objective causes of others against the interests of the law is not sufficient to achieve the criminal law against the interests of the law degree. Perhaps some people will disagree, the drug as a crime, attack is too large is not better? Not to crack down on drug abuse? And the harm caused by the drugs for others and the society is not big enough, how could not reach the provisions of the criminal law. The law degree? To understand these problems depends on the understanding of drug crime law benefit. According to traditional theory, the protection of law of drug crime is a national drug management system. But Professor Zhang Mingkai think, the protection of law of drug crime is the public health. If you think that the protection of law is a drug management system, will think that the drug should be prescribed in the criminal law, because the drug itself is a violation of national administration of drugs. If you think that the protection of law is a public health, will think that the drug should not be prescribed in the criminal law, because the drugs but the effect of her body rather than the impact on public health. Drugs and Dutch act against the interests of the main body is similar, drug use is against their own body, Dutch act is against their own life, although different legal benefits, but against all their rights and interests. The criminal law is not violated the rights and interests of behavior adjustment. Therefore, the author personally, I support the views of Professor Zhang Mingkai, the protection of law of drug crime is the public health, but not the drug management specification. Then this paper thinks, drug crimes should not be stipulated in the criminal law.

Society is a legal basis, no society is without legal. Society itself determines the people of different values, people are free to act, the law should protect people set free, while not violating the will restrict people's action. The criminal law is the guarantee of the various departments law, with modesty, did not cause enough damage to the interests of law should not be adjusted to criminal law. Freedom of thought and social ethics can not only restrict people from the subjective, but also caused enough law against crime phenomenon did not result in objective (violates the modest principle).

"Harmony but not sameness is the people of different vividly reflect the values, which is also the result has no value to guarantee freedom, people's behavior is not affected (do not do to others). Results no value theory is the illegal essence forward security, protection of the interests of the law idea of freedom under. Social decision law, legal reaction to the society, following the natural and social laws, the law can better promote social development.