法益规范诠释机能的检视与发展

Examination and Development of the Function of Legal Interest Standardization

自从法益概念引入我国,其就在两个方面改造着刑法理论,一是犯罪客体逐渐被法益概念代替,一是法益取得与社会危害性的比较优势,前者淡化了犯罪构成理论中犯罪客体的抽象性,后者弱化了犯罪本质中社会危害性的政策性。鉴于法益的规范化与具体性,其对于评价立法条文、诠释规范条文具有积极意义。随着风险社会观念的盛行,积极一般预防理论被提出并被重视,反映在立法和司法层面则是法益保护不断提前,法益内容不断抽象化、精神化、非人本化。对此,不应该质疑和批判法益在立法和司法上的价值,而是需要更加关注法益的评价功能与诠释价值,并补充以危害性原则,以达到检视立法合法化与司法合理化之目的。

Ever since the concept of legal interest was introduced into China, it has reformed the theory of criminal law in two aspects. One is that the object of crime is gradually replaced by the concept of legal interest, the other is the comparative advantage between the acquisition of legal interest and the harmfulness of society. The former weakens the abstract nature of the object of crime in the theory of crime constitution, while the latter weakens the policy of social harmfulness in the essence of crime. In view of the standardization and concreteness of legal interest, it has positive significance for evaluating legislative provisions and interpreting normative provisions. With the prevalence of the concept of risk society, the positive general prevention theory has been put forward and paid attention to, which is reflected in the legislative and judicial aspects: legal interest protection is constantly ahead of schedule, the content of legal interests is constantly abstracting, spiritual, non-human-oriented. Therefore, we should not question and criticize the value of legal interest in legislation and judicature, but should pay more attention to the evaluation function and interpretation value of legal interest and supplement the principle of harmfulness in order to examine the legalization of legislation and the rationalization of judicature.