法益論的現代困境及其憲法化改造

The Modern Dilemma of the Theory of Legal Interests and Its Constitutional Transformation

法益論面臨現代困境的根本原因在於不重視法益論的憲法根據。法益論的功能不僅在於回答什麼是刑法保護的法益，更在於回答什麼不是刑法保護的法益。這說明不能僅從本體論視角建構先法性法益，而是更加需要重視法益論的憲法根據，明晰法益論與憲法中關於公民基本權利關聯的法理，從規範論視角建構與憲法融通的法益概念，使其在避免刑法從法益侵害向法益侵害危險退讓、以價值理性取代目的理性、從“法治國家的基本權利保障”過渡到“社會國家的社會秩序形塑”上發揮重要作用。現代刑法強調犯罪設定或犯罪認定以保護法益為實質根據，這需要把刑法所保護的法益與憲法中關於公民基本權利的規定關聯起來，重視合憲性解釋的實踐。刑法不可以把屬公民基本權利的行為規定或解釋為犯罪，這種合憲性解釋是體系解釋的應有之義。

The fundamental reason that the theory of legal interest is facing the modern dilemma is that it does not pay attention to the constitutional basis of the theory of legal interest. The function of the theory of legal interest is not only to answer what is the legal interest of criminal law protection, but more importantly to answer what is not the legal interest of criminal law protection. This should not only be constructed from the perspective of ontology, but should pay more attention to the constitutional basis of the theory of legal interests, clarify the jurisprudence related to the basic rights of citizens in the Constitution, and construct the concept of legal interests integrated with the Constitution from the perspective of normative theory. Thus, it plays an important role in avoiding criminal law from infringement of legal interests to compromise of legal interests, replacing purpose rationality with value rationality, and transitioning from“protection of basic rights in the rule of law state”to“shaping of social order in the social state”. Modern criminal law emphasizes that the establishment or identification of crime is based on the interests of the protection law, which needs to associate the legal interests protected by the criminal law with the provisions of the basic rights of citizens in the constitution, and attaches importance to the practice of constitutional interpretation, criminal law can not prescribe or interpret acts belonging to the basic rights of citizens as crimes, and such constitutional interpretation is the due meaning of the system interpretation.