【作者】 刘宇；

【导师】 吕岩峰；

【作者基本信息】 吉林大学 ， 刑法学， 2007， 博士

【摘要】 民法与刑法本属性质迥异之法律,但是随着社会的发展,两者在理论的发展上都作了相应的调整,随着法律分工之细化,两者在调整现实生活中也不免发生联系。本文运用比较分析之方法对民法与刑法的关系问题作了全面系统的理论梳理和阐述,其主要内容包括民法与刑法的共通性及特殊性,民法与刑法的关联性,刑民交叉案件的处理机制。希望通过上述研究调和民法与刑法的功能、解决民法与刑法在适用上之冲突与矛盾,辨析民法与刑法在理论和制度上的差异和共通之处,厘清一些基本概念在适用上的混乱,为我国法制一体化之研究做出一定贡献。更多还原

【Abstract】 This Thesis, employs the comprehensive comparative approach, conducts a systematic and comprehensive reasoning and analysis in terms of relevant issues in the convergent areas of civil laws and criminal laws, with an aim to explore the interactivity and inter-relationship of the two in various aspects, with the fundamental framework and approaches of reasoning as follows:The Thesis, in respect of the structure, is divided into three paragraphs: the First Paragraph, the Commonalities and Peculiarities of Civil Law and Criminal Law; the second Paragraph, the Inter-relations between the Civil Law and Criminal Law; the third Paragraph, Methods of Resolving Cases in Convergent Areas of the Two.The Preface Paragraph includes the emergence of this issue, the implications of the research and the methodologies employed; the theoretical and practical significances, and the comparative analysis conducted seperately and individually on civil law and criminal law, in the light of the comparative methodology used in research on public law and private law by Japanese writer meinubuky。The First Paragraph reviews the commonalities and peculiarities between civil law and criminal law. The reason why the author combines the analysis of the two issues is that, as the authors argues, the commonality and peculiarity are not absolutely severable, the commonality comprises the peculiarity, while peculiarity comprises commonality. To have a comprehensive and comparative study of civil law and criminal law, this Paragraph bases the research on the fundamental categories. This Paragraph is categorized into: the historical references of civil law and criminal law, the reference of values of civil law and criminal law, civil norms and criminal norms, the subjects in civil law and criminal law, the activities in civil law and criminal law, the fault in civil law and criminal law, the justifiable causes in civil law and criminal law, the causation in civil law and criminal law, civil liability and criminal liability. Due to the great amount of legislative rules and theories under the categories of civil law and criminal law, this Thesis is not able to and is not having a thorough examination of all those issues under the context of the fundemantal categories, hence the Thesis is highly selective in its topics, and virtually a research on those that are relatively comparable in nature, which in certain degree reflects the inter-relations and interative actions toward each other, as termed by the author, those referable issues.The Second Paragraph explores the inter-relations between the civil law and criminal law, which is deemed as the core parts of the Thesis. The comparative study would be by no means significant if the civil law and criminal law had no convergence theoretically or practically, therefore, the study of inter-relations shall be based on the perceptions of the commonalities and peculiarities of each. It is safe to say that emergence of interrelation between the two is a let out for commonality and peculiarity issues in convergent areas. This Thesis is aimed to build up a clearly defined theoretic framework for study of interrelation between civil law and criminal law, and the Paragraph is divided into: the mixing of civil law and criminal law, interactivity between civil law and criminal law, the convergence of civil law and criminal law, transference between civil law and criminal law, the collisions between civil law and criminal law, the merger of civil law and criminal law.The Third Paragraph is set to deal with how the civil-criminal convergent cases are resolved. The said cases are categorized into three types: implicating crimes, puzzling crimes, and concurrence of crimes, which is a categorization in light of the approach of resolution, and is expected to help handle with the convergent cases from the perspective of case-resolving. This Thesis does not endorse the attempt to set up a uniform basic principle for all civil-criminal convergent cases, say, Criminal Prior to Civil Doctrine, neither does the author purport the viewpoint that virtually no rules to be observed in this area, therefore, this Thesis explores into these types of resolutions proposed respectively in light of relative legislative rules, theories and practical cases.更多还原