刑法何以保护体育权:体育刑法法益证成

How Criminal Law Protects the Sports Right: Justification of the Legal Interests of Sports Criminal Law

体育刑法的实定法体系及体育刑法学的学科体系一直没有在我国建立起来,根本原因在于体育刑法的同类法益及其正当性基础没有被揭示。体育刑法法益的证立,必须结合体育的功能与共同体的主流文化价值。宪法规范之于体育刑法同类法益的生成意义,只限于必要但非充分层面。体育作为象征符号以增强团体凝聚力、认同感的价值应被提升为最值得刑法关注和保护的价值。承载这一价值的竞技体育比赛之真实性就是体育同类法益的具相。这一法益经过维特根斯坦的“家族相似性”理论的类比考察,符合刑法的必要性与最后性原则的验证。

The fundamental reason why the positive law system of sports criminal law and its disciplinary system have not been established in China is that the same category of legal interests in sports criminal law and its justification basis have not been revealed. One cannot directly deduce the category of legal interests of sports criminal law from the provisions on sports in the constitutional text;or rather, the constitutional norms have not fully determined the noumenon of the category of legal interests in sports criminal law. However, it must be pointed out that the constitutional norms have positively affirmed the value of the existence of sports, which provides the necessary conditions for justifying the category of legal interests in sports criminal law. The justification of the legal interest of sports criminal law must integrate the functions of sports with the mainstream cultural value of the community. China’s mainstream cultural value has inherited the idea of collectivism from the traditional culture, the part of which most suitable for the sports field is to promote group communication. In the formal organized competition, athletes strengthen the cohesion of the community and stimulate the sense of identity and belonging in the community members through the positive image and spirit of hard work, unity and cooperation. The function of sports as a symbol to enhance the cohesion and identity of the community should be elevated as the function that deserves most attention and protection by criminal law. The authenticity of competitive sports games that carries this function constitutes the focus of the same category of legal interests of sports. At present, only three kinds of acts, namely, false games, manipulation of results and voluntary doping or inducing, abetting, deceiving or forcing others to dope, violate the authenticity characteristic of sports competition and thus undermine the cohesion and identity of the community. Therefore, these three acts should be considered as infringing on the same category of legal interests of sports and should be included as crimes in sports criminal law. But these legal interests are not involved in mass sports and informal competitive sports because their purpose is to promote the physical and mental health of individuals. Only in organized competitive sports and commercial competitive sports does it involve the same category of legal interests in sports as stated in this paper.From the perspective of criminal legislation theory, it is indeed difficult to point out the necessary boundary of whether a certain legal interest is worthy of criminal law protection. This paper draws on Wittgenstein’s theory of "family resemblance" at the methodological level, and finds out, through analogy, two similar family members related to the legal interest of authenticity in sports in the current criminal law: the first is punishing the crime of damage to symbolic signs;the second is reflected in the analogy with crimes such as fraud and crimes against public safety. After the analogical examination of Wittgenstein’s theory of "family resemblance", it is pointed out that the legal interest of authenticity is in accordance with the principles of necessity and finality in criminal law.