The System Dilemma Of The Theory Of Legal Interest And Its Countermeasures

Legal interests have always been the core concept in modern criminal law systems.In terms of time,legal interest has been proposed as a concept for a hundred years;from the spatial dimension,the eoneept of legal interest is eommon in Germany,Japan and China and other civil law countries.Besides,the concept of legal interest is considered to come into play in both legislative review,judicial interpretation and many others.The wider the application of theory,the higher the universality requirement,which leads to the loss of the connotation of legal interest as a concept should be accurate and its boundary role.As far as the status quo of the concept of legal interest is conceemed,there are worries about the application of conflicts caused by vagueness and spiritualization;external challenges are faced with the challenges of normative violations and behavioral worthlessness.The subject of the concept of legal interest is the subject of this article.There are four chapters in this paper,which are divided into two parts;the first part includes the first chapter and the second chapter,and the second part is the third chapter and the fourth chapter.The first part deals with the concrete manifestation of the dilemma encountered by the concept of legal interest.The second part is to propose a corresponding solution to the dilemma.The first chapter analyzes the dilemma of the legal concept from the perspective of practice,including the judicial and legislative fields.In order to respond to the trend of social development,the recent criminal legislation has a tendency to over-criminalization.The concept of legal interest that should be responsible for the demarcation of legislation by legislation can not effectively assume this function because of its own fuzzification.In the judicial process,the legal benefit is widely applied as a criterion for judging the illegality:the interpretation of the constituent elements falls into a substantive trend of thought and subverts the criminal law itself;because the content of the legal concept is unclear and the position is vague,the administrative criminal's illegal judgment The standard has emerged from the criminal law to the administrative law.It has adopted the "results-based" judgment on the excessive pursuit of the purpose of legal protection.It conflicts with the protection premise and the positive behavior of criminal behavior..The second chapter analyzes the dilemma of the concept of legal benefit from a theoretical perspective.The concept of legal interest changes in the longitudinal dimension of history.In this process,it evolves from a simple factual concept to a concept with facts and norms.Compared with other substantive categories of horizontal violations,it can be seen that the concept of legal interest is developed.The tendency to blur is precisely what the criminal rule of law requires.With the development of modem criminal law,the dispute between the factual attribute and the normative attribute of the concept of legal interest has further developed:the dispute between values and methodology has been formed in the function,and the dispute between the actual and the former has been formed in nature.The third chapter is to answer the dilemma of the concept of legal interest from the theoretical point of view.Firstly,the necessity of the concept of legal interest should be emphasized.Because the violation of legal interest is not in conflict with the violation of norms.They are the relationship between purpose and means.The difference lies in the different stages of application:legal protection is the illegal essence of the former,and the standard violation is the actual.On the basis of the illegal nature,the concept of legal interest should be used as the tools and methods of inspection play a role in the legislative stage.Secondly,combined with the context of contemporary social development,the contractual basis that the concept of legal interest first appeared was examined.Although the relationship between government and individuals was moderated to a certain extent,the emergence of informal power increasing the risk of individual infringement.Therefore,returning to the classical,that is,to adhere to the basic position of individual freedom,the freedom right of the individual should be seen as the basis of legal connotation.Finally,an empirical approach is adopted to improve the connotation of legal interests on the basis of individual basic freedom according to the situation of social development.The fourth chapter is to answer the legal dilemma from the practical point of view.It is also divided into two dimensions:legislation and justice.As far as legislation is conceemed,it is necessary to divide its rank according to the subject and content of the connotation of legal interest,determine the basic position that the individual is superior to the collective and the original is superior to the derivative.Then,viewing the legislation based on this position.The concept of legal interest is the criminal policy for the criminal law.It is necessary to determine the limits so that it can achieve the purpose of criminal policy and ensure the scientific nature of legislation.In terms of method,it is necessary to take elearness as the goal,proceed from the structure of criminal law norm,and adopt dual-track legislation for the unclear norms of violations.Countermeasures,the introduction of diversified value judgments for the unclear norms of infringement results to further clarify.From the judicial dimension,after divesting the improper application of the legal concept,other methods should be sought.In the interpretation of the constituent elements,we should adhere to the formalist position and realize the interpretation of the concept of criminal law in the normative context through linguistic rules.The judgment of illegality,especially the illegal judgment of administrative criminals,must be independent,that is,the criminal law norms are the sole criterion.The determination of the form of sin must be divided into the application of the "results of the position" and the "behavior of the behavior".The natural offense adopts the "results of the position",and the statutory criminals adopt the "behavior of the conduct".The distinction between natural and legal criminals can be achieved by drawing on the criteria for distinguishing dangerous criminals.Specifically,from the content of the criminal law norms,it is a natural crime to emphasize behavioral misconduct,and to emphasize the result of the law is the result of the crime.