积极刑法观下法益立法批判机能的再检视

A Re-examination of the Legal Interest's Function of Criticizing Legislation under the Concept of Positive Criminal Law

为回应社会治理需求,刑法进行了多次修正。其中,法益是否具有并发挥了立法批判机能面临广泛质疑,需要再次检视。法益立法批判机能具有积极与消极两个侧面:对于值得刑法保护但尚未纳入的法益,应及时增设新罪或扩充旧罪,这是积极侧面的实现,而非立法批判机能的丧失;对于不保护法益的犯罪,法益事实上发挥了立法批判机能的消极侧面,对于部分犯罪已予以除罪化,但仍有赌博罪等极少数不保护法益的犯罪尚未废除。比例原则无法替代法益,为实现法益的立法批判机能,应将二者有机结合。借助比例原则,根据法益立法批判机能所提供的基础与依据,对于不保护法益的犯罪应及时通过违宪审查制度予以废除。

Criminal law has been amended several times in response to social governance.During this time,whether the legal interest has and has performed the function of criticizing legislation is once again questioned,so it must be examined again.The legal interest's function of criticizing legislation has both positive and negative sides:for the legal interest worthy of protection but not yet protected by criminal law,the timely creation of new crimes or expansion of old crimes realizes its positive side,not the loss of the function of criticizing legislation;for crimes that do not protect the legal interest,the legal interest in fact plays the negative side of the function of criticizing legislation,and some crimes have been decriminalized,but there are still very few crimes that do not protect the legal interest,such as gambling,that have not been abolished.The principle of proportionality cannot replace legal interest,the two should be combined organically,and crimes that do not protect legal interest should be abolished in time through the unconstitutional review system based on the legal interest's function of criticizing legislation with the principle of proportionality.