利益的层次结构与利益衡量的展开——兼评加藤一郎的利益衡量论

日本学者加藤一郎提出的利益衡量理论揭示了法官运用法律进行判案的过程就是利益衡量的过程 ,有积极意义。但是也有其缺点 ,最根本的是它没有科学的规则体系 ,容易导致恣意。利益存在层次结构 :当事人的具体利益、群体利益、制度利益和社会公共利益 ,在实践中应当区分不同的类型进行仔细地剖析和论证。

The Interest measurement theory put forward by the Japanese scholar Ichiro Kato has its positive significance. It reveals that the process in which a judge decides cases by applying the law is a process of interest measurement. However, this theory has its shortcomings, the most basic one being the lack of a system of scientific rules, which can easily lead to arbitrariness. Interest has a stratified structure: the specific interests of parties, group interest, institutional interest, social interest and public interest. In practice, we should distinguish different types of interest and carefully analyze and demonstrate each of them.