论集体法益向个人法益的比例还原

On the Proportional Reduction of Collective Legal Interests to Individual Legal Interests

面对预防性犯罪化的立法冲击,集体法益独立说提倡的法益限缩论与构成要件限缩论都难以实现限缩刑法处罚范围的效果。因此需要从集体法益独立说转向集体法益还原说,并对集体法益还原说进行外部辨正与内部辨正。集体法益的还原不是存在论的分解还原、利益还原或者条件还原,而是从价值论上把集体法益还原为个人法益的普遍保护手段。集体法益的还原应该符合比例原则的目的正当性审查和手段正当性审查。以目的正当性审查来甄别不真正的集体法益,以手段正当性审查来甄别不合比例的集体法益。冲突的集体法益、溢出的集体法益以及过时的集体法益均不应受刑法保护。

Facing China's unidirectional preventive criminal legislation over the past three decades,how to deal with the relationship between collective and individual legal interests is a watershed for different views of criminal law.The doctrine of the independence of collective legal interests,which holds that collective legal interests cannot and need not be reduced to individual legal interests,proposes the restriction of legal interests and the restriction of constituent elements,but it is difficult for either of these two measures to limit the scope of criminal penalties.It is difficult to limit the application of constituent elements without guidance from legal interests.Therefore,it is necessary to move from the doctrine of independence of collective legal interests to the doctrine of reduction of collective legal interests and to externally and internally identify the latter.External identification aims to clarify the relationship between the doctrine of reduction and independence of collective legal interests,and internal identification aims to clarify the relationship between different paths within the doctrine of reduction.The reduction of collective legal interests is not a decomposition reduction because legal interests that can be decomposed into individual legal interests are not originally collective legal interests;it is not an interest reduction because legal interests are the highest common denominator of interests;and it is not a condition reduction because conditions are infinitely retrospective vertically and infinitely extensible horizontally.The essence of the reduction is a value-based reduction,namely the reduction of collective legal interests to a universal means of protecting individual legal interests.The means-end relationship between collective and individual legal interests determines that the protection of collective legal interests by criminal law should be limited by the principle of proportionality,which includes the purpose-justification test and the means-justification test.As far as the purpose-justification test is concerned,firstly,if a collective legal interest is not a universal means of protecting individual legal interests but a special means of protecting particular interests,its protection is not justified by purpose;and secondly,aggregates of individual legal interests are not authentic collective legal interests,and the use of cumulative crimes to protect them does not serve a legitimate purpose.As far as means-justification test is concerned,firstly,it is disproportionate to protect collective legal interests if the protection does not promote individual legal interests but rather harms them;secondly,if criminal law already provides comprehensive protection for individual legal interests,it would be disproportionate to protect relevant collective legal interests;and thirdly,the protection of collective legal interests would be disproportionate if the means-end relationship no longer exists as a result of changes of times.