| The roots of the intersection of criminal law and civil law substantive problems are the questions of whether the application of norms of criminal law and those of civil law affects each other and to what extent they affect each other. The systematic orientation and applicative defects of the concept of civil offense, together with the loss of substance of the principle of unity of legal order at the illegality level, leads to the lack of rationality of “the illegality theory”. The real intersecting point of criminal law and civil law is not illegality, but the legal effect. This paper takes the evaluation object as the main line, and shifts the approach to the problems from “the illegality theory” to “the legal effect theory”. The risk of incompatible legal effect can emerge only when legal facts evaluated by criminal law and those evaluated by civil law are identical. In such cases, if the normative purposes of criminal law and civil law are consistent, that is to say, when the sanction or protection of the legal subject under criminal law and that under civil law are in the same direction, a comprehensive consideration of the legal effects of criminal law and civil law would be sufficient. Conversely, if the normative purposes of criminal law and those of civil law are clearly opposed to each other, that is to say, when the sanction or protection of the legal subject under criminal law and that under civil law are in opposite directions, the application of criminal law and that of civil law need to be separated at the level of facts of the case, so as to define different types of cases for the normative application of criminal law and civil law. Under this situation, the relationship between criminal law and civil law changes from intersection back to separation. |
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