On The Collective Legal Interest In The Criminal Law

In recent years,several criminal law amendments,especially the last two amendments,have shown the trend of incrimination.From the new types of crime,the enlargement of the crime is mainly through the expansion of the scope of the collective legal interest,but the study on the theory of collective legal interest is not enough to support the legislature's work and scholars` critical work.Therefore,it is necessary to explore the appropriate theory of collective legal interest to better achieve the goal of scientific legislation,which can through the way of using the theories of collective legal interest abroad and linking up the specific conditions in China.The full text of this article is more than 30,000 words,and it is divided into five parts,which respectively discusses from these aspects: the concept of collective legal interest,theoretical controversy,the necessity of protection,the boundary of protecting and the concrete collective legal interest.The first part summarizes the collective legal interest.From its concept,the collective legal interest refer to the inseparable interest shared by all people.From the perspective of value,the collective legal interest intend to provide room for individuals to exist and develop freely.Collective legal interest are equivalent to the sum of social legal interest and national legal interest.However,the collective legal interest can restrict criminal legislation from expanding improperly by the means of reviewing its legitimacy,and thus has greater research value.Collective legal interest have two characteristics: abstraction to some degree and the absolute nature of protection.The second part introduces the theoretical controversy of the collective legal interest.The collective legal interest are produced in Germany.The relationship between the collective legal interest and the personal legal interest affects the scope of the collective legal interest.In theory,there are different answers to this question,which include the following: monism personal legal interest theory,namely collective legal interest is derived from personal legal interest,and its purpose is only protecting the personal legal interest early;monism collective legal interest theory,namely personal legal interest is derived from collective legal interest;dualism,namely that the collective legal interest have other function that independent from personal legal interest,it provide social room for all individuals to exist and develop freely.These theories have great controversy on the theoretical basis and the value of the collective legal interest,and they all have some shortcomings,but the dualism is better at responding to practical problems.The third part is the necessity and relevant problems of collective legal interest' protection.In order to survive in the social,individuals need a certain social living space,the subsisting of this space requires the government to fulfill certain responsibilities and basic social rules operation smoothly.Criminal law guarantee the fulfillment of government`s responsibilities and the implement of social rules by the method of protecting collective legal interest,so that criminal law can maintain the social space operating smoothly.At the same time,it is essential to prevent the criminal circle expanding improperly and limiting the freedom too excessively by protecting false collective legal interest or breaching the principle of proportionality.The fourth part discusses about the reasonable boundary of protecting collective legal interest.There are three key factor that legislator should consider when they define the boundary,first the authenticity of collective legal interest,which should judge from its function and the recognition of social;second,the principle of proportionality,which should judge from certain standards;third,the effect of enforcement,which means we should review if it is necessity to incrimination after we define special conduct as criminal.The fifth part is the specific elaboration of collective legal interest protection.The collective legal interest could be classified according to its function: the first is the legal interest to protect the free space,and the second is the legal interest to protect the country's structure.On this basis,collective legal interest is classified into detailed categories according to the special function and structure of the collective legal interest.Analysis of each category is divided into three parts: the value of protection,the principle of proportionality and question in domestic criminal law.Collective legal interest protect the social living space,so it is legitimate to protect collective legal interest by enlarging the crime,meanwhile we should limit the scope of protecting collective legal interest properly in case of infringing the freedom too much.