On The Norm Defects And Limitations Of Patriarchal Criminal Legislation

In order to maintain the public law nature of the criminal law,the legal interests that serve as the basis for justifying the criminal law’s prohibition of justification should get rid of the constraints of the victim and insist on objectivity.However,the objectification of legal interests also has the possibility of criminal law bypassing citizens’ right of self-determination and making choices on their behalf.It may even endanger their rights under the banner of protecting citizens’ legal interests.The handling of the Lu Yong case is a typical example.Therefore,the objectivity of legal interest may cause a contradiction between the formal value prohibited by the criminal law and the normative purpose.This actually stems from the fact that the two elements within the right cannot always coexist in harmony.Once the two conflict,it will inevitably endanger the legitimacy of the criminal law prohibiting the protection of corresponding interests.Under this circumstance,it seems that the legislator retreats to the right holders to choose freely.It seems more in line with the constitutional concept.After all,only the right holder knows which elements are more important to them.However,this approach may negate the authority of law.Since legislators usually pay attention to the choices of ordinary people under normal circumstances,for a few people,this obviously has elements of paternalism.In fact,in the current criminal law,paternalistic legislation is often reflected,and it often exists in a way of protecting a certain morality or order.Since the legitimacy of moral offenses has long since declined in the current society,the basis of this kind of legislation can only be established on the maintenance of a certain order.However,in terms of legitimacy,the order itself lacks ultimateness,that is,it also needs the protection of legal interests to defend it.In this way,criminal legislation that excessively restricts civil liberties and protects abstract legal interests can easily violate people’s moral intuition when implemented.Therefore,it needs to be restricted.In fact,the existing criminal legislation suspected of paternalism not only violates the principle of protection of legal interests at the normative level,but also,at the level of realization,can easily lead to excess deprivation,thus violating the requirement of the principle of proportionality.Therefore,on the premise of adhering to the principle of the supremacy of law,on the one hand,it is also possible to review paternalistic legislation through the principle of proportionality,the principle of high risk and irreversibility,and the principle of distinction,with a view to protecting individual freedom to the greatest extent,building a framework of free boundaries,and realizing scientific legislation as soon as possible;On the other hand,it is necessary to use current legal resources to restrict it from the perspective of judicial application through the principle of last resort,victim consent,emergency avoidance and other systems.