Social Sciences in China (Chinese Edition)

No. 3, 2024

The Restoration of Legal Interests and the Functional Theory of Illegality

(Abstract)

Du Yu

The positioning of legal interest restoration within the criminal law system presents an opportunity for theoretical innovation by integrating it into assessments of illegality, thereby promoting a functional shift in the theory of illegality. Within this theory, illegality consists of two dimensions: illegality for which punishment should be imposed and illegality for which punishment is necessary. The former concerns the legitimacy of declaring an act illegal, while the latter focuses on the practical imperative of punishment. These dimensions exhibit significant differences in scrutiny, procedural sequence, and evaluative orientation, while also maintaining a symbiotic relationship characterized by mutual complementarity and constraint. Introducing the functional theory of illegality not only facilitates systematic consideration of functionality but also enables clear separation and proper alignment within the criminological hierarchy.