危害原则与法益保护原则比较研究

Comparative Research between Harm Principle and Legally Protected Interest Principle

危害原则与法益保护原则均产生于启蒙思潮,且二者核心要素的内涵均指向"利益"。但自比恩鲍姆开始转变视角思考刑法正当化根据时起,法益保护原则就逐渐偏离启蒙主义的自由法治思潮,法益也便被形塑为法律保护的利益或刑法保护的利益。而危害原则指向的利益却是法律前的利益,此类利益把危害原则固化为元法律原则。利益的范畴和内涵的差异,决定了两个原则的运转目标、价值诉求和功能的差异。危害原则具有的批判和反思功能,使其成为刑法立法的伦理工具,而法益保护原则以教义学路径对注解刑法规范提供智识。基于此,应把超越实证法且具有自由法治血统的危害原则,作为刑法立法的正当化根据。

Both the harm principle and the principle of legally protected interest are originated from the ideological trend of enlightenment, and the connotation of the core elements of both points to "interests." However, since Birnbaum began to change the perspective of thinking about the justification of criminal law, the principle of legally protected interest has gradually deviated from the ideological trend of freedom and rule of law of Enlightenment, and legal interest has also been shaped as "interests protected by law" or "interests protected by criminal law." However, the interests in the harm principle is the interest before the law system, which solidifies the harm principle into a meta legal principle. The difference of the category and connotation of interest determines the difference of the operational goals, value demands and functions of the two principles. The criticism and normative function of the harm principle makes it an ethical tool of the criminal law legislation, but the principle of legally protected interest provides the knowledge to annotate the criminal law statutes by the dogmatism path. Based on this, the harm principle of transcending the positive law and having free legal lineage can be the justification basis of criminal law legislation.