论法益的二重性理论

On the Duality Theory of Legal Interest

法益既有利益属性,又有规范属性,法益的利益属性与规范属性是法益的二重性。法益的实体是利益实体,法益的形式是规范形式,法益是利益实体与规范形式的结合。利益实体与规范形式结合的方式有两种:一种是以利益实体为基点、以行为规范为形式的结合方式,这是对物质化的法益概念作出的续造与发展。另一种是以行为规范为基点,以利益实体为导向的结合方式,这是对精神化的法益概念的续造与发展。法益本质类型存在二重性,法益的本质是利益实体与规范形式结合的现实可能性或者抽象可能性。

The legal interest has both interest attribute and normative attribute, which are the dual character of legal interest.The entity of legal interest is the interest entity, and the form of legal interest is the normative form. Legal interest is the combination of the interest entity and the normative form.There are two ways to combine interest entity and normative form.One is taking interest entity as starting point, behavior criterion as the form, which is the renewal and development of the concept of legal interest of materialism.The other is taking behavior as starting point, interest entity as the guide, which is the renewal and development of the concept of spiritual legal interest.There is duality in the nature of legal interest, and the essence of legal interest is the realistic possibility or abstract possibility of the combination of interest entity and normative form.