风险社会下传染病防治犯罪的理念辨析与边界划定

Concept Analysis and Boundary Determination for Crimes against the Prevention and Treatment of Infectious Diseases in the Context of Risk Society

传染病防治犯罪的刑法治理同风险社会理论天然具有契合性,但近年来处于刑法立法相对消极化的状态。将我国社会系统的转型同刑法观的流变相结合进行研究,发现传染病防治犯罪既存在传统刑法观遗留的立法理念错位、类型化不足等缺陷,也存在风险刑法观下立法模式合理性存疑。因此,必须立足于复调式的社会结构,对传染病防治犯罪的立法理念、立法思维、立法模式等问题进行回应,同时划定其风险社会语境下的立法扩张边界。

The criminal law governance for crimes against the prevention and treatment of infectious diseases is naturally consistent with the theory of risk society,but in recent years relevant criminal legislation remains at a negative state.By combining the transformation of China’s social system with the change of the concept of criminal law in this study,we’ve found the crimes against the prevention and treatment of infectious diseases possess the defects of misplaced legislation concept and insufficient types left over from the traditional concept of criminal law,as well as the doubts about the rationality of the legislative model under the concept of risk criminal law.Therefore,we must base on the multilayered social structure,respond to the issues such as the legislative ideas,legislative thinking,and legislative mode of the crimes against prevention and treatment of infectious diseases,and simultaneously delimit the boundary of legislative expansion in the context of risk society.