法益衡量原理的教義學檢討

Dogmatic Criticism on the Principle of Legal- Goods Evaluation in Criminal Law

將法益衡量說當作違法阻卻一般原理的做法存在重大疑問。這是由結果無價值 論將利益衡量混同於法益衡量所致。在實體層面，法益衡量原理在適用於正當防衛、緊急避險與被害人同意時，面臨諸多體系上的矛盾。在方法論層面，法益衡量原理的缺陷在於未考慮制度利益與法治國的基礎利益。方法論上的缺陷，使得法益衡量說的利益衡量觀違反立法判斷優先的設定，對解釋者的主觀性也缺乏必要制約，還易於忽視不同正當化事由在內在結構上的差異。違法性判斷中的利益衡量，必須以制度利益為核心來展開；對制度利益的解讀，則應超 脫具體當事人的利益，並以法治國的基礎利益所彰顯的價值為指導；對法治國的基礎利益的核心部分不允許作相對化的處理。

The principle of legal-goods evaluation as the material rationale of justification is faced with a serious doubt in criminal law. This results from the confusion of a notion of Interests Evaluation with that of legal-goods evaluation. In the perspective of substantive theory, the material rationale of justification based on legal-goods evaluation brings so many systematic questions, when it is applied in the specific cases of justifiable defense, necessity and victim's consent. From the angle of methodology, the idea of interests- evaluation, behind the principle of legal-goods evaluation, has an inherent defect in ignoring institutional interests and constitutionalism interests. Such a methodological defect makes it impossible to restrict the subjectivity of statutory interpretation, and meanwhile means to deviate from the presupposition that legislative judgment has priority in the system of law. It also causes people to pay less attention to the important structural differences among various specific justifications. Interests-evaluation as a method is reasonable. However, it is necessary to provide its application in criminal law with a regulative framework. Interests-evaluation in the judgment of unlawfulness must be made focusing on institutional interests, and in defining the institutional interests of statutory provisions, people should consider the values represented by constitutional fundamental rights, meanwhile beyond the interests of the concerning parties in particular cases. The core interests of constitutionalism constitute the borderline in the application of interests-evaluation in criminal law.