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🇯🇵 | [Ozumou] Illegal gambling turmoil with water in the first place.

Photo Hidenoumi (East Sports Web) who was in and out of an illegal gambling store

[Ozumou] Illegal gambling turmoil with water in the first place.

If you write the contents roughly
Gambling is just an illegal act, and criticism that it is a "big punishment" is inevitable unless the association shows a resolute response.

The first place of sumo wrestling reached the first day at Ryogoku Kokugikan in Tokyo on the XNUMXth.As the Kakukai embarks on a new year, a scandal by an active sumo rikishi ... → Continue reading

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Illegality(Ihosei,British: Criminal defenses) Is formallyLegal normsContrary tonatureTo say.However, there is a dispute over the essence of illegality as described below, and the definition (especially the definition of illegality in a practical sense) changes accordingly.

Distinguishing from illegality

Illegalness means that the act or condition violates the law (eg criminal law).On the other hand, in the case of civil cases or cases that should only be morally condemned, regardless of violations of the law (Tort(See also), even if it is an illegal act, it cannot be said that it is illegal. "Illegal" and "illegal" are generally used synonymously, but if anything, "illegal" is often used when the emphasis is on legal and "illegal" is emphasized on substantive and subjective ideas.[1].

Illegal relativity between legal fields (monism and pluralism)

For example, should an act that is evaluated as illegal or illegal under civil law be evaluated as illegal or illegal under criminal law, or is it permissible to be illegal on the one hand and legal on the other? There are conflicting views on the issue.

Illegal monism is the view that in all laws, judgments of illegality and legality are based on unified standards.

Illegal pluralism is the view that the criteria for judging illegal / legal may differ in each legal field.

According to the theory of illegal pluralism, for example, criminal illegality is illegal in the entire legal order to the extent that it is appropriate to face it with punishment (Punishable illegality) Must only be affirmed (eg, under civil law)Restitution for DamagesThe responsible person, for that reason,punishmentIt is possible to draw the conclusion that (there is no claim to be imposed).

On the other hand, according to illegal monism, such an understanding is logically impossible and criticized as inconvenient.However, even if the theory of illegal unification also evaluates an act as illegal, the act is also illegal under the criminal law, but what kind of legal effect it has is still reserved as a criminal law issue. (Just because it's illegal under the criminal law doesn't mean you have to punish it).A valid conclusion drawn by the illegal pluralism is the counter-criticism that it can be drawn in the same way by recognizing the pluralism of the legal effect corresponding to the illegality without understanding the illegality in multiple ways.

Illegalness in criminal law

According to pluralism, otherdecreeWhether or not an act that violates the above is criminally considered illegal is another matter.

Formal illegality theory and substantive illegality theory

Illegalness is formal illegality to understand that an act violates legal norms (alone: Formelle Rechtswidrigkeit) Theory.this is,Positive lawIt is based on (Adolf Merkel) andbindingAdvocated by

However, the formal theory of illegality only means that "it is illegal to go against the law" and does not reveal the substance of illegality.Therefore, it is not a formal violation of legal norms, but rather illegality in a more substantive sense, that is, substantive illegality (alone: Materielle Rechtswidrigkeit) is now being explored.

The content of the theory of substantive illegality varies considerably from person to person.For exampleFranz von LisztAccording to the socially infringing behaviorLegal benefitInfringement or threat toME MeyerAccording to (MEMayer), each attitude that is incompatible with the state-approved cultural norms (Kulturnorm) is the content of (substantial) illegality.上記リストの見解をThe views in the above listLegal infringement theory, Meyer's viewNorm violation theoryIn some cases, they are related to the theory of result worthlessness and the theory of action worthlessness, respectively.

Objective illegality and subjective illegality

About the nature of criminal illegality, onceObjective illegal theoryとSubjective illegal theoryThere was a conflict with.Objective illegal theory is supported from the standpoint of classical criminal law (old school), and subjective illegal theory is supported from the standpoint of modern criminal law (new school).School conflictThere was a lot of controversy in the world.

Objective illegality and subjective illegality differ in their views on whether to view law as an evaluation norm or a command norm.

Objective illegality (objectiveism) is the position that it is illegal to objectively violate legal norms, which are objective evaluation norms.According to thisAccountabilityEven the actions of those who do not have it can be evaluated as illegal, and in the extreme, the behavior of animals other than humans and natural phenomena can also be evaluated as illegal.

Subjectivism (subjectivism) is a position in which it is illegal to act and violate the legal norms, which are the norms of command for actors, while understanding the command.According to this, the actions of non-responsible persons cannot be evaluated as illegal (natural phenomena that are not human actions are not evaluated as illegal).

Originally, the theory of objective illegality was the view of traditional theory, but since the latter half of the 19th century, it has been criticized from the standpoint of the theory of subjective illegality advocated by (Adolf Merkel), and it also supports the theory of subjective illegality. Collected.However,Rudolf von JeringAs a result of (E. Mezger) et al. Attempting to refute from the side of objective illegality theory, subjective illegality theory gradually lost its supporters, and objective illegality theory became the dominant view.

According to this objective theory of illegality, the criminal code isEvaluation normsとCode of decisionIt has two aspects, and there is a violation of the evaluation norm.IllegalAnd the violation of the decision normresponsibilityIs said to be.

Result worthless and action worthless

While the theory of objective illegality (objectiveism) has become mainstream, this time, the conflict over the substance of illegality has become apparent within it.That is, about the substance of illegalityLegal infringement theory(Result valueless theory)Norm violation theoryIt is a conflict of (act worthless theory) (details of each areResult worthless,Act worthlessSee. ).

Result worthless theoryIs the substance of illegality,Result worthless(Erfolgsunwert), that is, the view that it is a negative evaluation of the consequences evoked by the act, and the substance of illegality.Legal benefitIt is equated with the theory of infringement of legal interests, which is understood as infringement and threatening of.例えばFor exampleMurderIf you look atAttemptedIn the case of, as a result of human death,attemptedIn the case of, it is illegal to cause the result of the death of a person, which is a risk of causing an accomplished result.

Act worthless theoryIs the substance of illegality,Act worthless(Handlungsunwert), that is, the view that understands that it is a negative evaluation of the act in a narrow sense (Handlung) that is separated from the result, and that the substance of illegality is the anti-normative theory of the act. Is equated with.For example, in the case of attempted murder, the malignancy of acts that could kill a person (malice aforethought and its mode of conduct) is considered to be the basis of illegality.

Furthermore, in terms of seeking the purpose of the criminal law from the protection of legal interests, there is a position to accept the theory of valuelessness as a result, but in addition to that, to understand the illegality in consideration of the valuelessness of the act.Eclectic act worthless theory,Dual act worthless theory, Or simplydualismAlso known as.In most cases, the term "act worthless theory" refers to this dualism.

Systematic status

In German criminal law theory, whether or not a crime is committed is judged through three stages: applicability of constituent requirements, illegality, and liability (trisection theory).

Acts that fall under the constituent requirements are considered illegal in principle, but exceptionallyLegitimate defenseAndEmergency evacuationIn the case of, it is evaluated as not illegal (prevention of illegality), and the act is not a crime.In this way, the circumstances that underlie the absence of illegality,The reason for illegal denialThat.

There is also a view that this ground for blocking illegality is positioned as a constituent element (passive constituent element) (German myth,Makoto Ida).

Illegal theory in Japan

Illegalness in criminal law

In Japan,Shigemitsu DantoSince then, the theory of act worthlessness has been regarded as a traditional myth.ただし、日本において「行為無価値論」と呼ばれている見解のほとんど全てが、結果無価値と行為無価値の両方を違法性の本質として承認する二元論であり、行為無価値のみを違法性の実質として理解する見解(かつてドイツにおいて通説的地位を占めたHowever, almost all of the views called "act worthless theory" in Japan are dualisms that recognize both result worthlessness and act worthlessness as the essence of illegality, and only act worthlessness is illegal. View to understand in substance (once occupies a mythical position in GermanyCentralized act worthless theory) Is different from.

In academia, the theory of act worthlessness has been criticized as an idea to protect morality criminally.その中心的人物がThe central figureRyuichi HiranoAs a result of his support, the theory of worthlessness has expanded its support and has become extremely strongly asserted.[2].

Impact on the conclusion of the theory of illegality and case law

The theory of result worthlessness and the theory of action worthlessness are often violently opposed, and it is sometimes pointed out that the theory of action worthlessness (dualism) tends to carry out punishment a little wider, but it is often deductive from the theory of illegality. It has been pointed out that the disagreement that is different from the theory of illegality actually causes the difference in conclusions, even for the issues that are explained as if the conclusions were drawn.[3]Therefore, it cannot be said that the scope of punishment will be expanded because it is an act worthless theory.[Original research?].

JapanesePrecedent・ Practice is said to be based on the theory of act worthlessness, but it is not clarified in the judgment sentence, and the theories that agree in the conclusion are not always based on the theory of act worthlessness.

Illegalness in tort law

JapaneseCivil Code Article 709There is a view that "illegalness" is a requirement for independence in the torts stipulated below, but there are also criticisms. 「違法性」は独立した成立要件になるとする見解が通説とされた時期もありThere was a time when it was generally accepted that "illegalness" was an independent requirement for establishment.[4], Affected by thatNational compensation lawThen, in Article 1, the word "illegal" is used.However, from the 1960s to the 1980s, criticism of the conventional wisdom increased, and the requirement of illegality was unnecessary.NegligenceThe theory that it should be resolved to the requirements ofYoshio Hirai) And the theory that it should be considered within the requirements of "infringement" and "intentional / negligence" as stated in the article (Eiichi Hoshino), A theory that improves this while maintaining the framework of traditional myths (Kazuo Shinomiya,Yutaka Sawai) Rather, the theory () that both the requirements of "infringement" and "negligence" should be resolved as illegality requirements has appeared one after another.Furthermore, in the 2000s, the theory of restructuring the tort law as a system for protecting the basic rights of individuals has been argued (Keizo Yamamoto)[5]..他方、裁判例においては、上記学説の動向にもかかわらず、「違法性」という文言が使われ続けているOn the other hand, in court cases, the word "illegal" continues to be used despite the trends in the above theory.[6].

Illegalness under default law

Delayed performanceReasons for justifying failure to perform when discussing cancellations and damages underSimultaneous performance defenseSuch. )がないことをもって「違法」と表現することがある) May be expressed as "illegal"[7](Therefore, the reason for justifying not fulfilling is sometimes called the reason for blocking illegality).これは、ドイツ民法理論を参照して債務不履行の要件を構成した学説においてみられるもので、そこでは、ドイツ刑法学と同じく、構成要件、違法性、及び責任の3段階に分けて考察する三分論を採用したものであるThis can be seen in the theory that constructs the requirements for default with reference to the theory of German civil law, where, like German criminal law, it is considered in three stages: constituent requirements, illegality, and liability. It adopts the theory of division[8].


Regarding criminal illegality

  • Hitoshi Otsuka, Kazuo Kawakami, Fumiya Sato, Yuki Furuta, "Large Commental Penal Code (2nd Edition)", Vol. 166, pp. XNUMX et seq.
  • Hitoshi Otsuka, New and Old Theories in Criminal Law (1957)


[How to use footnotes]
  1. ^ ["Yuhikaku Law Glossary" item "Illegal" / "Illegal"]
  2. ^ Ken Naito"Development of Act Valuelessness and Result Valuelessness in Postwar Criminal Law" Criminal Law Magazine Vol. 21, No. 4, p. 1 or less, Vol. 22, No. 1, p. 58 or less
  3. ^ Hitoshi Saeki "Judgment of Illegalness" Law School No. 290, p. 57 and below
  4. ^ The view that requires illegality isSuekawa HiroshiBeginning with "Rights Infringement Theory" (Kobundo Shobo, 1930)Sakae AzumaJudgment methods were prepared and established in "Administration, Unjust Enrichment, and Tort" (Nihon Hyoronsha, 1937).
  5. ^ Regarding the above, Yutaka Sawai, "The Confusion and Prospects of Tort Law: Illegalness and Negligence," Law Seminar-296, p. 72,Yoshio ShiomiSee "Illegal Acts" (Shinzansha Publisher, 1999), especially on page 33 et seq.
  6. ^ For example,Supreme CourtJudgment on July 17, 7 (MinshuSee Vol. 59, No. 6, p. 1783, Case of claiming compensation for not disclosing transaction history in the so-called overpayment refund claim case).
  7. ^ Sakae Wagatsuma, "New Revised Bonds General Remarks (Civil Law Lecture IV)", p. 111, etc.
  8. ^ See Yoshio Shiomi, "Introduction to Credit I (2nd Edition)" (Shinzansha Publisher, 2003), p. 259 et seq.

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