中国经济刑法法益:认知、反思与建构

当前基于秩序、利益、自由等表述的经济刑法法益学说在认知进路上存在问题,无法形成本体和功能自洽的法益观。应当承认集体法益的独立性,立足法益二元论对经济刑法法益进行本体重塑与功能展开。它勾连宪法,是保障在经济领域中实现个人自由的外部条件的统一体,也是经济秩序市场经济规范保护的客体。法益不是刑法独有的保护目标,仅根据法益标准难以有效区分刑事不法与行政不法。经济刑法的犯罪化应坚持保护适格的集体法益,同时更加注重合比例原则和明确性原则的补充与限制。经本体重塑的经济刑法法益兼具体系超越与体系内在功能,有助于在反思当下中国经济刑法立法与司法的基础上,重构经济刑法的立法理念与犯罪化标准,厘清经济犯罪的类型与解释原理。

Legal Interest of Economic Criminal Law in China:Cognition,Reflection and Its Construction

At present,the theory on legal interest of economic criminal law based on terms such as order,interest and freedom has some problems in the cognition approach,so it is impossible to form an outlook on the legal interest with consistent thing-in-itself and functions.We should recognize the independence of the collective legal interest,and carry out thing-in-itself remolding and function development of the legal interest of economic criminal law based on the dualism of the legal interest.It corresponds to the Constitution and is the unity of external conditions that guarantee individual freedom in the economic sphere.It is also the protected object of the rules on the economic order in market economy;the legal interest is not a target uniquely protected by the criminal law,so it is difficult to make a distinction between criminal misconduct and administrative malpractice only according to the standard of legal interest.The criminalization for the economic criminal law should be made by sticking to the protection of the proper collective legal interest and paying more attention to the supplement and limitation of the principle of proportionality and the principle of clarity.The legal interest of economic criminal law after the thing-in-itself remolding enjoys both the system-transcendent and the system-inherent functions,helps reconstruct the legislative idea and criminalization standard for the economic criminal law and clarify the types of the economic crimes and the principles of interpretation on basis of the reflection on the current legislation and judicial application of Chinese economic criminal law.