Abstract：There are two different ways to analyze the status of illegality. According to conceptualism, criminal illegality, as the legal characteristics of the concept of crime, is equivalent to the constitution of a crime. This way of thinking not only leads to the substitution between the elements of illegality and elements of culpability but also produces serious obstacles in the identification of joint crime and other issues. In contrast, structuralism holds that illegality is the object of examination in the system on constitution of a crime and forms an orderly logical progressive relationship with the constitutive requirement and culpability. Among the structuralists, there are differences between theory of judging constitutive requirement in priority and theory of judgement on integrated illegality. The theory of judging constitutive requirement argues that constitutive elements, as the first level of the constitution of crime, are probable to make harmless acts or slightly harmful acts as crimes. Therefore, some people are devoted to the substance of constitutive requirement, but the boundary of constitutive requirement and illegality and culpability becomes ambiguous again. Thus, the theory of judgement on integrated illegality, which treats constitutive requirement and illegality as an integration, comes into being. In this opinion, the necessity of punishment becomes the factor limiting the constitutive requirement, but at the same time, the application of constitutive requirement may be improperly expanded because of the necessity of serious punishment.For solving the above problems, this paper puts forward the theory of judging illegality in priority, that is to say, illegality should be regarded as the first level of evaluation in the system of criminal constitution. First of all, the essence of illegality is objective infringement on legal interest, which is not affected by the subjective will of the agent. Therefore, in the logical order, illegality should precede culpability centered on the possibility of condemnation. Secondly, according to the provisions of criminal law, only if the behavior is regarded with the substantive characteristics of endangering the society, should we further consider whether the behavior conforms to the criminal type prescribed by the criminal law. Moreover, the judgment of objective illegality is not affected by the type of crime. Therefore, illegality should be logically placed in front of constitutive requirement centered on the type of crime. Thirdly, whether the perpetrator does the wrong thing or not, it does not affect its culpability. On the contrary, the elements of culpability such as capacity for criminal responsibility is the premise of the subjective constitutive requirement. Finally, according to the unity of the entity of crime and the determination of crime, the regularity of criminal procedure and the efficiency of achieving criminal justice, the theory of judging illegality in priority of illegality is not only applicable to the structure of the entity of crime but also to the structure of determination of crime. In short, the theory of judging illegality in priority is helpful to carry out the principle of infringement of legal interests, the principle of a prescribed punishment for a specified crime and the principle of responsibility.The innovation of this paper is as follows. (1) This paper jumps out of the contention between the theory of judging constitutive requirement in priority and the theory of judgement on integrated illegality, and puts forward the theory of judging illegality in priority, which takes the illegality as the first level in the constitution of a crime, and conducts detailed argumentation from the perspectives of legislative provisions, principles of criminal law and the role of the specific elements that constitute a crime. (2) Different from the Japanese scholar Shinji Suzuki’s theory of judging illegality in priority, this paper puts forward that the constitutive requirement should be placed logically in front of culpability, and the theory of judging illegality in priority is applicable to both the structure of entity of crime and the structure of determination of crime. (3) Detailed response to the doubts about the theory of judging illegality in priority from the perspectives of the independent value of illegality, the negative meaning of statutory punishment and the actual effect on handling cases.
邓毅丞. 违法性的体系定位困境与重构——违法性前置说的提倡[J]. 浙江大学学报(人文社会科学版), 2023, 53(11): 148-168.
Deng Yicheng. Rethinking the Position of Illegality in the Constitution of a Crime. JOURNAL OF ZHEJIANG UNIVERSITY, 2023, 53(11): 148-168.
2023, Vol. 53 
