刑法与民法的“分”“合”之辨

    Reexamination of the Relationship Between the Criminal Law and the Civil Law

    • 摘要: 刑法与民法在规范目的、调整手段等方面迥异,但不能简单地将两者对立化,刑法与民法的关系体现在两者"分""合"的理解上。"分"是两者所调整的行为在社会危害性上的区分,"合"是两者对致害事件的规制互相补充、互相影响,两者对致害事件的处理不可或缺。刑法规制具有严重社会危害性的行为,而危害不大的行为则交由民法调整,且随着社会认知的变化而改变,刑法与民法的界分也应随之做动态调整。在对待刑法与民法的关系上,既要警惕刑法优先适用的思维,遵守刑法的谦抑性,也应注意不能以民事判断代替刑事判断,更应分别运用民法规范和刑法规范对行为进行定性。

       

      Abstract: Although the criminal law and the civil law are different in the standard, the goal, the adjustment method and so on, they cannot be treated simply. The relationship between them is embodied in the understanding of "division" and "co-operation". On the one hand, "division" is the distinction of the social harmfulness. The criminal law regulates the behavior which is seriously harmful to the society, and the tort is regulated by the civil law. Social harmfulness is not unchangeable, but it will change with the change of social cognition. Therefore, the boundary between the criminal law and the civil law should be adjusted accordingly. On the other hand, "co-operation" means that both of them are indispensable to the handling of harmful incidents. In dealing with the relationship between the criminal law and the civil law, criminal law should be alert to the priority of thinking, abide by the modesty of criminal law, we should also pay attention to the fact that the civil judgment cannot be replaced by the criminal judgment and the behavior should be determined by using the norms of the civil law and the criminal law.

       

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