具體犯罪保護法益的確定方法

The Method of Determining the Legally Protected Interests for Specific Crimes

在基本犯與加重犯的保護法益不同的情形下，應當分別確定基本犯與加重犯的保護法益。如果擬制罪名與基本罪名的構成要件不同，就不應按罪名確定保護法益，而應分別確定擬制罪名與基本罪名的保護法益。阻擋層法益與背後層法益是就不同犯罪或者基本犯與加重犯的關係而言，並不是任何具體犯罪的保護法益都包含阻擋層法益與背後層法益。應當根據法益主體與被害人同意或承諾的有效性等要素區分個人法益與公共法益，不應當在對個人法益的犯罪中隨意添加公共法益內容，也不宜隨意在對公共法益的犯罪中任意添加個人法益內容。此外，需要區分具體犯罪的保護法益與阻卻違法性的優越利益，不應將阻卻違法性的優越利益當作相關犯罪的保護法益。

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.