Social Sciences in China (Chinese Edition)

No.7, 2017

 

The Principles of Protection of Legal Interests and Proportionality

(Abstract)

 

Zhang Mingkai

 

The principle of legally protected rights or interests has always played a fundamental guiding role in criminal legislation. In recent years, some scholars have suggested substituting the principle of proportionality for protection of legal interests. However, the content of this principle offers no advance on the principle of protection of legal interests; moreover, it does not examine appropriateness of purpose, lacks clear standards and leads to abstraction of the concept of legal interest. The occurrence in recent years of criminal legislation that imposes punishments too early or excessively does not mean that the principle of protecting legal interests faces a crisis; rather, it indicates the need to exercise the critical function of the legal interests concept. Of course, the principle of proportionality has methodological significance for implementing the principle of legal interests. In introducing proportionality into the field of criminal law as a supplement to the principle of legal interests, we should avoid simplistic discourse conversion and mechanical adoption. The review of criminal legislation should be carried out in five steps: (1) Is the purpose reasonable? (2) Are criminal penalties an effective means of achieving a reasonable purpose? (3) Is there any substitute for a criminal penalty? (4) What damage may be caused by the use of criminal penalties to protect interests? And (5) What kind of criminal penalty should accompany the corresponding crimes?