From Common Legal Interest To Criminal Legal Interest-research On Constructing Levels For Legal Interest From The Legislative Perspective

Although the conception of legal interest derives from criminal law, the researchershad never limited it to the range of criminal law. All through the history of legalinterest conception in Germany, the jurists always researched the conception in thearea of integrative jurisprudence more than in the range of criminal law. In moderntimes, many facts have proved that legal interest conception has beyond the field ofcriminal law, which should due to the fact that the conception Objective Law provedby Rudolph von Jhering play an important part in the development of legal interestand the station of criminal law, the last punish law, has been confirmed.The fact that the range of legal interest beyond criminal law makes it functionweaker. Firstly, legal interest cannot be a special conception of criminal law andcannot take the load of reveal the essence of crime, so it cannot distinguish criminallaw and other laws. Secondly, thanks to the essence of the national penalty power, theantenna of criminal law is easy to interrupt into other departmental laws when theboundary between criminal law and other departmental laws is not clear. But, this isunfavorable for securing the human right and limiting penalty, and goes against theprinciple of economy.However, contrast with other theory, legal interest theory is obviously superior andwidely used, we cann’t discard it because its shortcomings but to improve it withendeavor.Jurists has done some to modify legal interest theory such as instruct a legalinterest conception under the integrative jurisprudence. But this cannot solveproblems because of the paradox among the functions of legal interest theory: themore abstract the conception is, the harder to realize its classification function andevaluation function; on the contrary, the more specific the conception is, the easier tocarry out its interpretation function and criminal policy function. So the conception oflegal interest under the integrative jurisprudence still cannot entirely accomplish thefunction on constitution of crime and finitude of crime.In this paper, we try to solve the problem via constructing a hierarchical legalinterest conception. Concretely speaking, we divide legal interest into three levelsincluding general legal interest, legal interest under departmental laws exceptingcriminal law and legal interest under criminal law. During these levels, general legalinterest are life interests base on the fundamental principle of constitution and shouldbe protected by law, objectively being able to be encroached on or threaten, which wecan also call it natural legal interest. As the first level, general legal interest shouldhave the most enhancive connotation and only limited by constitution so as to become the basic of the other two levels. The second level, departmental legal interest, refersto the general legal interests that should be protected by departmental laws exceptingcriminal law and meanwhile the protection from departmental laws is enough. As themiddle level, departmental legal interest is the way through which the general legalinterest concretized as well as one step general legal interest become criminal legalinterest (it’s not mean that a general legal interest must be a departmental legalinterest before becoming criminal legal interest, but means it should be judgedwhether the protect to the general legal interest from departmental laws is enough).The third level, criminal legal interest, refers to should be protected by criminal lawbecause these legal interest cannot entirely protected by departmental laws. Afterconstructing three levels stated above, transition ways between every two levelsshould be constructed. We just focus on the way departmental legal interest transit tocriminal legal interest. However, it is proved that the boundary between criminal lawand other departmental laws is unsteadily, so it’s hard to build a definite rule. Finally,this paper tries to design a transition way of combination of abstract principles andconcrete rules, basing on the theory of the modest proposal.Above all, the intention of this paper is to construct hierarchical legal interest sothat the abstraction and the specification of legal interest can be realized, so do thefunctions of legal interest. Besides, it’s helpful to reasonably definite the range ofcriminal legal interest and to safeguard human rights and limit penalty power, whichis the essence of legal interest.