风险社会之刑法应对

Coping with Risk Society: Criminal Law

风险社会为理解和把握现代刑法提供了全新的观察视角,也为反思传统刑法提供了重要的理论工具。为了应对风险,有必要制定风险刑法。风险刑法在观念、功能和归责等方面与传统刑法有显著不同,对传统刑法基本原则构成挑战,并对传统刑法价值体系进行裂解,隐含有巨大风险。在风险社会,可以采用传统刑法与风险刑法并存的方式,以弥补传统刑法在功能上的不足和责任追究上的漏洞,两者互相支持,共同达成维护社会秩序和安全的目标。

Risk criminal law results from the coming of risk society. The risk society not only offers a new visual angle for understanding and mastering modern criminal law, but also provides an important theoretical tool for re-thinking traditional criminal law. Risk criminal law tries to establish a new model of criminal law to prevent and solve risks beyond traditional criminal law. The normalization and functionalism of criminal law become the theoretical basis of risk criminal law. The former emphasizes to model people＇s activities through norms in order to keep people loyal to laws and norms. The latter emphasizes that criminal law plays a more active role in preventing risks in order to maintain the safety and order of society. Risk criminal law is substan- tially different from traditional criminal law. It establishes a new paradigm of criminal law, adjusts its functions, changes the principle of liability imputation, re-constructs the constitutions of risk crimes and prepositionally uses punishments. Risk criminal law transforms the value systems of traditional criminal law, thus brings about some risks and dangers. Firstly, it launches challenge to the basic principles of traditional crimi-nal law. It has conflicts with the principle of legality, the principle of criminal responsibility and the principle of proportionality. Secondly, it splits the system of values of traditional criminal law. Its boundary of punishment is quite indefinite because it takes the necessity of preventing risks rather than the infringement of legal interests as the basis of punishment. Thirdly, it changes the principle of liability imputation, so it may excessively expand the scope of criminal responsibility. In short, equality, freedom and rights advocated and pursued by traditional criminal law are still regarded as the basic values. Therefore, risk criminal law can not completely replace traditional criminal law, and it should be a supplement to make up for the weaknesses and loopholes of traditional criminal law. In other words, traditional criminal law and risk criminal law should coexist. They support each other to realize the goals of maintaining the order and safety of society.