法益衡量中的事实还原运用--刑法解释的视角

法益衡量在刑法解释中具有确保法律合法化的重要价值,法益衡量对个罪保护法益的甄别、权衡与比较,必须借助事实还原来完成。事实还原立足于对刑法规范赖以建构的立法事实是否在客观上具有真实性、在规范上具有价值性或在法秩序上具有必要性的判断,以为法益衡量提供判断标准。刑法解释立足于法益衡量把法律代入充满个性的案件事实中,以之来检视抽象的法律对具象的事实之适应程度,并发现法律面对案件事实时的适用或者不适用。事实还原不仅是法益衡量之客观论证的媒介,而且是法益衡量方法选择的基础,同时还是法益衡量限度确定的标准。如欲作出既合法又合理的解释结论,则需要解释者认真对待法益衡量中的事实还原,以判断法律规范赖以存在的保护法益是否存在、是否有价值、以刑法保护是否具有必要,从而把不具有保护法益的真实性、价值性或必要性的行为排除在犯罪圈之外。

The application of fact reduction in the measurement of legal interest——from the perspective of criminal law interpretation

The measurement of legal interest has an important value in the interpretation of criminal law to ensure the legalization of law, in the measurement of legal interest, the discrimination, balance and comparison of the legal interests of individual crimes should be accomplished by the reduction of facts. The fact reduction is based on the judgment of whether the legislative facts on which the criminal law norms are constructed are objective, valuable or necessary in the legal order, so as to provide the judgment standard for the measurement of legal interests. The interpretation of criminal law is based on the measurement of legal interests, which puts the law into the case facts full of personality, and examines the adaptation degree of abstract law to concrete facts, and finds out the application or inapplicability of law in the face of case facts. Fact reduction is not only the media of objective demonstration of the measurement of legal interest, but also the basis of choosing the method of measuring legal interest and the standard for determining the limit of legal interest measurement. If we want to make a conclusion that is both legal and reasonable, we need the interpreter to take the fact reduction in the measurement of legal interest seriously, so as to judge whether the protection of legal interest exists, whether it is valuable, whether it is necessary to protect the legal interest by criminal law, so as to exclude the behavior that does not have the authenticity, value or necessity of protecting legal interest from the criminal circle.