Induction And Exploration: The Development Of The Theory Of Legal Interest Recovery

Criminal law is not only to crack down on crimes and punish criminals,but also to protect people and legal interests.At present,there are some legislative provisions,judicial interpretations and real cases about the recovery of legal interests in judicial practice,but no systematic theory has been formed.In practice,the criminal law evaluation of the recovery of legal interests is more discretionary lenient punishment,which leads to a deviation from the principle of crime,responsibility and punishment.Therefore,this paper attempts to put forward the theory of legal interests recovery to solve the criminal law problem of the recovery of legal interests.The problem of evaluation,hoping to give more ways to the criminal law evaluation of the recovery of legal interests,can make some contribution to the similar cases,enhance people’s sense of identity and awe to the criminal law.This paper consists of four chapters.The first chapter is the basic definition of the theory of restoration of legal interest,including the connotation and content of restoration of legal interest,the relationship between restoration of legal interest and similar concepts,the theoretical foundation and normative basis of restoration of legal interest.In a word,the recovery of legal interest means the recovery of damaged legal interest as before.The act of restoring legal interest refers to the act that the actor takes active and effective measures to repair and remedy the harm of legal interest within a certain limitation period after the crime has been accomplished.The theory of restoration of legal interest is a theoretical study centered on the restoration of legal interest behavior,which mainly solves the problem of how to evaluate the restoration of legal interest behavior in criminal law.Specifically,the restoration of legal interest behavior can affect both conviction and sentencing,and should be considered as the circumstances of legal sentencing in the process of conviction and sentencing.The second chapter demonstrates the coordination between the restoration of legal interest and the traditional criminal law and proves that the restoration of legal interest has a living space in the theory and norms of criminal law in China.From the basic principles of criminal law,the restoration of legal interests conforms to the principles of legal punishment,equal application and commensurate punishment.From the perspective of crime completion,there are different opinions in the theoretical circle on whether the crime can be stopped after completion.This paper agrees with the view that the crime can not be stopped after completion,but there is no necessary connection between the crime can not be stopped after completion and the crime can not be done after completion,they cannot be directly equal,and the recovery of legal interests as a way of crime emergence does not violate the theory of crime form.The third chapter is to construct the theory of legal benefit restoration systematically.First,to solve the problem of the positioning of the theory of legal interest restoration in the criminal law system,this paper holds that there is no space in the criminal theory system,and it should be placed in a broader perspective: the evaluation system of crime responsibility punishment,as the reason for excluding criminal responsibility.It puts forward the applicable principles of the theory,the conditions for the restoration of legal interests and the criteria for the judgment of recoverable legal interests.Secondly,the applicable principles are determined,including the principles of Initiative,effectiveness and timeliness.Thirdly,the establishment elements are clear,including the main objective and subjective elements.Finally,the judgment criteria are clear,including the restoration of damaged legal interests,the power of national law,the non personal nature of the damaged legal interests and the non violent means of crime.The fourth chapter deals with the specific application and development of the theory of legal interest recovery.First of all,on the basis of the application principles and criteria established in the previous paper,this paper holds that the scope of application of the theory of legal interest restoration should be limited to the following types: property crime not involving personal legal interest,economic crime not involving personal legal interest,recoverable crime of destroying environment,duty crime involving only part of property legal interest in compound legal interest.Secondly,the specific ways of restoring legal interests include but are not limited to return in kind,monetary compensation and restitution.Thirdly,this paper holds that the theory of legal interest recovery can adopt the "dual legislative mode",that is,the mode of general provisions plus specific provisions: firstly,the punishment principle of legal interest recovery behavior can be defined as a general provision through the general provisions,and then the specific provisions can be made in combination with the characteristics of individual crimes in the specific provisions,and the time node and corresponding responsibility of legal interest recovery can be specified in the judicial interpretation The legal consequences include no investigation of criminal responsibility,a lighter punishment,a mitigated punishment or exemption from punishment.Another way is judicial staff through the substantive interpretation of the legal provisions,using the theory of legal interest recovery,such as in the crime of bribery and other crimes including compound legal interest or the crime of infringing on property and economic interests alone,and involving different criminal circumstances,the perpetrator can offset part of the damage results by repairing the legal interest before the judgment,so as to reduce the punishment.