对批判立法之法益概念的检视

Inspection on Concept of Legal Interest of Criticizing Legislation

刑法的任务在于法益保护。德国等国宪法法院的多个判决说明,批判立法的法益概念在确定某一罪刑规范是否具有合法性的问题上,具有重要的实际意义。尽管作为一种最高法律原则,法益概念必然具有抽象性,但它可以通过一系列规则得以明确化。承认法益概念具有批判立法的功能,这与立法者享有一定创造空间的事实之间并不矛盾。行动犯所侵犯的同样也是法益,而不是感情。法益概念不仅具有刑事政策上的意义,而且还会对立法者产生约束力。即合比例性原则是判定某一规定是否合宪的决定性标准,而该原则的内容需要通过法益概念来得到具体化。

The task of criminal law lies in the protection of Rechtsgut. The case law of the constitutional courts of Ger- many and other states have illustrated that the legislation--criticized concept of Rechtsgut is of important practical importance in deciding whether the criminal norms comply with the principle of legality. Although as the highest principle of law, the con- cept of Rechtsgut must be abstract, it could also be crystallized through a series of rules. The admitting of Rechtsgut＇s legisla- tion-criticized function doesn＇t contradict with the certain creative space for legislators. The perpetrators of conduct infringe also the Rechtsgut rather than motion. The concept of Rechsgut has not only significance in criminal policy, but also restriction on the legislators. In other words, the principle of proportionality is the decisive criterion for judging the constitutionality of a rule, however, the content of this principle should be materialized by the concept of Rechtsgut.