刑法直接家长主义的理论澄清与实践转向

Direct Paternalism of Criminal Law:Theoretical Clarification and Practical Turn

直接家长主义,是指干涉者为了保护被干涉者的长远利益,违背其当前意愿,直接阻止其实施自我损害行为。若以刑法作为手段达成这一干涉目的,即为所谓刑法直接家长主义。刑法直接家长主义具有两种功能,一是让刑法成为直接家长主义的手段,将自我损害等行为规定为犯罪或者解释为犯罪,以阻止个人实施自我损害行为;二是让符合刑法构成要件的干涉行为借助直接家长主义出罪,也就是为刑法中的违法阻却事由提供理论根据。由于直接家长主义违背了刑法的思想基础、混淆了道德义务和法律义务、不吻合刑罚的谴责特质、无法实现刑罚的一般预防目的,因而并不可取。应当认为,在微观上,直接家长主义可以妥当解释针对同一法益主体的紧急避险和依照法令的救助行为。在宏观上,刑法应当对直接家长主义保持中立。

Direct paternalism means that the interferer directly prevents the interfered person from committing self-harm against his current wishes in order to protect his long-term interests.Paternalism has three basic characteristics:firstly,it is a restriction on the external freedom of the interfered person,irrespective of whether or not he consents to this restriction;secondly,it is the interference against the present will of the interfered person;and thirdly,it is in the long-term interests of the interfered person.When criminal law is used as a means of interference,this is known as direct paternalism of criminal law.It is generally accepted that direct paternalism in criminal law is not permissible on the grounds that acts against one’s own legal interests are not punishable under criminal law.However,it is not self-evident why an infringement on one’s own legal interests is not punishable under criminal law,which requires deeper theoretical exploration,and the function of direct paternalism in criminal law has yet to be explained.Direct paternalism in criminal law has two functions:the first is to make criminal law a means of direct paternalism by defining acts such as self-injury a crime or interpreting them as such in order to deter individuals from committing self-injurious acts.This function,however,contravenes the ideological foundations of criminal law,confuses moral and legal obligations,is inconsistent with the condemnatory character of punishment,fails to achieve the general preventive purpose of punishment,and therefore is undesirable.The second function,which is based on direct paternalism,decriminalizes interferences that are consistent with criminal law.In other words,on the one hand,direct paternalism can properly explain the necessity of the same subject of legal interest,such as the act of a bystander knocking unconscious a person who is about to commit suicide in order to prevent him from taking his life on impulse.There is a view in criminal law that cases in which the interest of preservation and the interest of sacrifice belong to the same person should be resolved on the basis of the principle of the victim’s consent.However,in such cases it is difficult to determine whether the victim has consented and it is more appropriate to rely on direct paternalism as a basis for decriminalizing the rescuer under the doctrine of necessity.On the other hand,direct paternalism may provide a basis for rescuing in accordance with law.A person who has a specific duty to do so may,subject to the principle of proportionality,use force to stop self-harm for the long-term benefit of the self-harming person,regardless of his or her immediate wishes.At a macro level,criminal law should remain neutral to direct paternalism,neither actively intervening or interfering nor preventing others from stopping unconscionable acts of self-harm on the basis of direct paternalism.