具体犯罪保护法益的确定方法

The Method of Determining the Legally Protected Interests for Specific Crimes

在基本犯与加重犯的保护法益不同的情形下,应当分别确定基本犯与加重犯的保护法益。如果拟制罪名与基本罪名的构成要件不同,就不应按罪名确定保护法益,而应分别确定拟制罪名与基本罪名的保护法益。阻挡层法益与背后层法益是就不同犯罪或者基本犯与加重犯的关系而言,并不是任何具体犯罪的保护法益都包含阻挡层法益与背后层法益。应当根据法益主体与被害人同意或承诺的有效性等要素区分个人法益与公共法益,不应当在对个人法益的犯罪中随意添加公共法益内容,也不宜随意在对公共法益的犯罪中任意添加个人法益内容。此外,需要区分具体犯罪的保护法益与阻却违法性的优越利益,不应将阻却违法性的优越利益当作相关犯罪的保护法益。

Under the circumstances that the basic crime and its aggravated crime have different protected interests,the legal interests of such basic crime and its aggravated crime should be determined respectively.If the legal fictional crime and the basic crime have different constitutional elements,the legal interests of such fictional crime and basic crime should be determined respectively,not should it be determined according to the charge of the crime itself.As to the legal interests at the barrier level and the behind level,they are only terms applied to different crimes as well as to the relationship between the basic crime and its aggravated crime,that is,not all the legally protected interests of specific crimes include the legal interests at the barrier level and the behind level.The individual interests should be distinguished from the public interests according to the subject and the validity of the consent or commitment made by the victim.It is not propriate to arbitrarily add public interests to crimes that are against individual interests,nor is it right to arbitrarily add individual interests to crimes that are against public interests.In addition,it is necessary to distinguish the legally protected interests for specific crimes and the superior interests of preventing illegality for establishing crimes,and the superior interests of preventing illegality for establishing crimes should not be regarded as the legally protected interests for specific crimes.