| With the positive preventive legislation concept being established gradually,the legislation protection of collective legal interest is expanding.From the point of view of practical needs and legal basis,collective legal interests highlight higher value and status because of the era of legal interests,the coming of risk society and the transformation of criminal law tasks.The reason why collective legal interest should be protected separately by law is that it has different characteristics from individual legal interest,namely non-exclusive,non-hostile and non-distributive.Although there is a legitimate basis for the protection of collective legal interests in criminal law,due to its abstractness and fuzziness,if it is not regulated and restricted,it is easy to be subjectivized and instrumentalized,resulting in a series of drawbacks such as the function of dissolving legal interests.Therefore,it is necessary to set the boundary for the protection of collective legal interests in criminal law.This can be expanded from two perspectives:restriction of entry and expansion of exit.Specifically,the threshold of collective legal interest crime should be set,and the criminal legislation of collective legal interest should meet the principle of subordination,proportionality and constitutionality.On the other hand,we also need to pay attention to the exclusion of false legal interests that lack value,the group legal interests that do not belong to the collective legal interests,the trend of generalization of collective legal interests should be vigilant,and the collective legal interests should have objective clarity.The expansion of crime mainly refers to the need to expand the path of collective legal interest crime,such as:Prevent the criminal law risk of criminalization of administrative standard,be good at using superior interest principle,pay attention to the alternative mode of prevention of collective legal interest crime(such as the application of compliance system,the introduction of dualistic crime mode,etc.),use consequence investigation theory to examine and amend legislation,give play to the performance of criminalization system of wrong understanding of illegality,etc.The writing context and specific content of this paper are as follows:The first part expounds the legitimate basis of the protection of collective legal interests in criminal law.From the perspective of practical demand,because the legal interest itself has the characteristics of The Times,the development of society and the innovation of criminal forms constantly give birth to new interests worthy of the protection of criminal law,and the scope and connotation of collective legal interest change accordingly.The advent of risk society highlights the importance of collective legal interests such as social order.public security and ecological environment.The task of criminal law has changed from safeguarding individual rights to participating in social governance more actively,and the collective legal interests have been strengthened and expanded.From the perspective of legal basis,the reason why collective legal interest should be protected separately by law is that it has different characteristics from individual legal interest,namely non-exclusive,non-hostile and non-distributive.The public attribute of collective legal interest determines that its function is to provide indispensable conditions for individual survival and development.The protection of collective legal interests has a constitutional basis and aims at preserving collective freedom in essence.Only by criminalizing the behavior of serious infringement of collective legal interests can we realize collective freedom and create conditions for extended protection of individual rights and interests.Although it is undeniable that collective legal interest is closely related to individual legal interest.it cannot be considered that there is derivation or dependence relationship between collective legal interest and individual legal interest,thus denying the independence of collective legal interest.The dualism of law interest acknowledges the dual attributes of law interest individuality and sociality,which is more in line with the actual situation of society,so it is worth advocating.From the realistic demand and legal basis.the protection of collective legal interests in criminal law has the legitimacy and necessity.The second part explains why we should set up the boundary of the protection of collective legal interest in criminal law,mainly from the abstraction of collective legal interest and its crisis,the risk of collective legal interest crime.Due to the higher abstractness and fuzziness of collective legal interests,it is easy to be subjectivized and instrumentalized if there is no restriction,which will eventually dissolve the function of legal interests,threaten individual rights and freedom of eitizens.and hinder social innovation and development.Therefore,it is necessary to set a boundary for the protection of collective legal interests in criminal law.The third part mainly discusses the restriction of collective legal interest crime,mainly from two aspects of restriction principle and restriction scheme.Among them,the restriction principle includes:subordinate principle,proportionality principle,constitutionality principle.The restriction plan puts forward some points for attention on the collective legal interest crime:exclude the false legal interest which lacks value,the group legal interest does not belong to the collective legal interest,be wary of the generalization trend of the collective legal interest,and the collective legal interest should be objective and definite.The fourth part discusses how to expand the path of collective legal interest crime,including:preventing the risk of criminal law of excessive criminalization of administrative standard,being good at using the principle of superior interests,paying attention to the alternative mode of prevention of collective legal interest crime,examining legislation with consequence theory,giving play to the performance of the system of eliminating criminalization of wrong understanding of illegality,etc.In the last part of the conclusion,the thoughts of this paper,specific content,shortcomings are summarized,and the future research direction of collective legal interests is extended thinking and prospect. |
