法益保护原则:立法批判功能的证伪

The Principle of Protecting Legal Interest:The Falsification of Its Legislation-Criticizing Function

法益保护原则在我国刑法学中被塑造成在司法上具有构成要件解释功能、立法上具有构成要件批判功能的完美指导原则,但它根本无法承担反思犯罪化立法的任务。法益概念之所以被创立,正是为了迎合当时刑法典中存在的宗教伦理犯而以“法益”证成此类犯罪的保护目的,这导致法益概念自始具有形式性、开放性之特征,缺乏先天自由主义内涵,相关概念史的误解值得澄清。为摆脱实证性法益概念对立法的无力,形式法益被实质法益取代,但无论超实证法性还是宪法性的实质法益均无法为立法提供限制标准,刑法不必借助法益这一中介,这是它面临理论悖论和实践冷遇的根本原因。在我国人民代表大会制度框架内,刑法不会因违背法益保护原则而被宣布违宪,宪法保护范围、合宪性审查制度两大因素决定“目的正当”并不重要,对犯罪化立法只能在立法草案阶段通过宪法和法律委员会对法益保护手段进行事前监督,“手段正当”的评价标准直接源自宪法的比例原则,法益保护原则完全被包含于比例原则,因而法益可有可无、应被替换。

The principle of protecting legal interests in the science of criminal law of China is regarded as a perfect guideline that has the function of interpreting constituent elements in justice and the function of criticizing constituent elements in legislation, but it cannot undertake the task of profound reconsideration of criminalization legislation at all. The concept of legal interests was created for the religious and ethical crimes existed in then criminal law, namely the legal interests were used to prove the protective purpose of such crimes, which results in the fact that the concept of legal interests enjoys the features of formality and openness, lacks the connotation of innate liberalism, so the clarification of relevant misunderstanding on the history of the concept is worthwhile. In order to get rid of the helplessness of the empirical concept of legal interests in legislation, the formal legal interest is replaced by substantive one, but neither the super-empirical law nor the constitutional substantive legal interest can provide the restriction standard for legislation, so there is no need to use legal interest as an intermediary to review the criminal law, which is the fundamental reason that the legal interest faces the theoretical paradox and the cold reception in practice. Within the framework of the people's congress system of China, the criminal law will not be declared unconstitutional due to its violation of the principle of protecting legal interest. The two factors of the scope of constitutional protection and the constitutionality review system determine that the "justifiable purpose" is not important, and during the criminalization legislation, the legal interest can only be supervised beforehand by the Constitution and Law Committee in the stage of a draft legislation, the evaluation criteria of "justifiable means". Is derived directly from the principle of proportionality of the Constitution, and the principle of protecting legal interest is fully contained in the principle of proportionality, so that it is not indispensable and should be replaced.