Research On The Limitation Of Abstract Dangerous Crime From The Perspective Of Double-layer Legal Interest Theory

The theory of legal interest originated in the criminal law of continental law system has been widely accepted by the academic community of criminal law,people seem to reach a consensus that criminal law is a legal interest protection law.However,the controversy about the theory of legal interest has not been concluded.In the field of criminal law in Our country,the disputes of the theory of legal interest mainly focus on two points: The first is the orientation of legal interest theory in criminal law theory,which is manifested in the dispute between social harmfulness theory and legal interest theory whether collective legal interest exists or not,and the spiritualization of legal interest.The theory of legal interest has been recognized,understood and accepted by people in the process of the above two aspects of continuous controversy.First of all,the theory of legal interest in the nature of crime controversy and social harmfulness theory is closely linked,after the orthodox position of the theory of social harmfulness was challenged,the theory of legal interest has gradually been concerned by the academic circles,and some scholars even advocated that the theory of infringement of legal interest should completely replace the theory of social harmfulness.From the perspective of functionalism,the main shortcoming of the theory of social harmfulness lies in its fuzziness and the loss of the function of legislative criticism,which cannot respond to the new changes of social environment.However,this does not mean that the theory of infringement of legal interests must completely replace the theory of social harmfulness.First,the theory of legal interest itself is still controversial,and there are three viewpoints on the concept of legal interest: positivism,pre-established legal interest and constitutional legal interest.If the positivism concept of legal interest is adopted,the theory of legal interest infringement will follow the footsteps of the theory of social harmfulness.Second,the most fundamental reason is that the problem of social harmfulness is the lack of functionality,and the supplement of legal interest theory can better realize the purpose of social harmfulness theory.Secondly,in the ontology of the theory of legal interest,there is a dispute about what type of legal interest to adopt,that is,whet her legal interest is formal or substantive,and this leads to the spiritualization of collective legal interest and legal interest.The concepts of formal legal interest and substantive legal interest correspond to the explanatory function and critical function of legal interest respectively.Denying the spiritualization of legal interest means denying the legislative critical function of legal interest theory.Therefore,the development of legal interest theory must be further to the direction of "spiritualization".The controversy is whether the theory of legal interests has the problem of "over-spiritualization",in other words,how to limit the "over-spiritualization" of legal interests.On the one hand,as the opposite of substantive legal interest,formal legal interest can limit substantive legal interest to a certain extent.On the other hand,spiritualized legal interests need to be tested by the humanistic concept of criminal law,which is the basis of the legitimacy of the theory of legal interests.Only from the Angle of protecting the citizens,can we restrict the spiritualized legal interests,which is essentially a constraint on criminal legislation.Facing the current social practice in China,the specific application of the theory of legal interest is mainly shown in three aspects: one is as an important basis for the interpretation of criminal law;Second,it is a theoretical tool for critiquing existing criminal legislation.Thirdly,it is an important standard to evaluate whether it is necessary to regulate specific social phenomena with the method of criminal law.In the process of continuous disputes,the theory of legal interest can realize its continuous perfection only by facing the disputes,responding to various challenging viewpoints and solving the problems existing in the theory and practice of criminal law.In the face of abstract dangerous crime which is widely used in modern society,we should start from the theory of legal interests and accurately grasp that the essence of abstract dangerous crime is to destroy or reduce the situation of the security and stability protection of legal interests.At the same time,the criminal policy function of legal interest theory and the function of substantive explanation theory are used to limit the abstract dangerous crime in legislative guidance and substantive explanation,so as to realize the criminal law regulation of abstract dangerous crime.