坚守与超越:风险社会中的刑法理论之流变

Persisting & Transcendentality:Changing of the Criminal Law Theory in Risk Society

风险社会下,刑法中大量出现行政犯、推行严格责任并没有构成对罪责原则的毁灭性破坏;面对法益概念出现的具体向抽象、个人向超个人、人本向非人本的嬗变,引入宪法性法益概念、建立违宪审查制度可以避免法益功能的弱化;抽象危险犯在风险刑法中的日益增多是由其功能吻合风险特点所决定的,可以采取恰当的刑法解释方法避免其弊端;归责理论的变迁是刑法对风险社会的有效回应,并没有扼杀主观罪责在定罪归责中的积极作用。

Under the ground of the risk society, the fact that the administrative offense and the strict responsibility principle are stepping into the criminal law system can not destroy the responsibility principle. Facing with the picture that the legal interests has been changing from concrete, individual and humanism to abstract, universal and non-humanism, it is a right way in dealing with the predicament of the legal interests function to bring the constitutionally legal interests and the unconstitutional review system into criminal law. The abstract potential damage offense has positive function in risk criminal law, and we can take right criminal theoretical interpretation in preventing its shortcomings. Objective imputation is an effective responsive to risk society, there is not contradictory between the objective imputation and responsibility criminal law.