日本의 現代豫防刑法과 法益保護原則

The modern preventive criminal law and principle of protecting legal interest in Japan

It is said the existing criminal law should be used prudently and reservedly as final means, because it stipulates the most rigorous sanction among laws. The criminal as such final means is entering new phase in modern complicated society. As positive crime and heavy punishment are recently in progress in Japan, criminal legislation has been frequently used to solve social issues. Namely, new regulations are enacted to activate criminal legislation. With respect to the question of object protected by criminal law, it is said criminal law generally protects legal interest. This is so-called principle of protecting legal interest, which is said to critically function on the use of punishment. As seen above, the reserved principle of protecting legal interest confronts the current situation of activated criminal legislation. However, regulation of criminal punishment enacted by excessive expectation of use of punishment owing to increased social uneasiness is necessary to protect the life of nation. Thus, it does not violate the principle of protecting legal interest, but meets the request for protecting legal interest. The principle of protecting legal interest is not 'there is no crime, unless there is infringement of legal interest' but 'crime is established if legal interest is infringed.' Thus, it does not restrict the criminal legislation. As a result, some point out that the principle of protecting legal interest virtually has no function to restrict the criminal legislation. This dissertation will discuss the meaning of principle of protecting legal interest in Japan and the present discussion. Namely, it will investigate the expansion of discussion on the opinion that no regulation of criminal punishment that takes protecting the legal interest of criminal law and excludes the relation of legal interest in infringement of legal interest.