Social Sciences in China, 2025

Vol. 46, No. 1, 2025

Legal Benefit Restoration and Functional Illegality Theory

(Abstract)

Du Yu

How should legal benefit restoration be positioned within the criminal law system? This question reveals a rare opportunity for theoretical innovation: embedding legal benefit restoration into the evaluation of illegality, and thereby driving a functional shift in illegality theory. In constructing a functional illegality theory, two layers of illegality are involved: meriting punishment and necessitating punishment. The former is anchored in the legitimacy of declaring an act illegal; the latter focuses on the immediate necessity of such a declaration. The two layers exhibit clear differences in the content of assessment, sequence of verification, and evaluative direction, creating a collaborative relationship of mutual supplementation and restriction. The functional illegality theory not only systematically incorporates functional thinking but also clearly demarcates different dimensions of functional evaluation, harmonizing them with the hierarchical structure of criminal theory.

Keywords: legal benefit restoration, functional illegality theory, functional responsibility theory, meriting punishment, necessitating punishment