风险社会中刑事立法正当性理论研究

Study on Justification of Criminal Legislation in Risk Society

经济的急速发展与社会关系的高度分化使社会呈现出风险的特征,我国刑事立法不得不紧跟社会形势频繁扩张,以应对风险社会隐藏的巨大危险。风险社会中,刑事立法正当性问题的实质在于刑法将一个危险行为作入罪化处理或者使刑罚提前到来的合理依据,解决第一个问题的关键在于如何在立法中把握犯罪化与非犯罪化的界限,解决第二个问题的关键在于如何在立法中把握犯罪性质的界限,即危险犯与实害犯的界限。

The present society exhibits a risk characteristics with rapid development of economy and highly differentiation of social relations.The criminal legislation has to expand frequently following the social situation,so as to cope with the huge dangerous behaviors hidden in the risk society.The essence of justification of criminal legislation lies in the reasonable basis for making dangerous behavior being crime and for advancing criminal punishment.The crucial point of the former is clarifying the boundary limitation of criminalization and decriminalization in the legislative practice.The crucial point of the later is clarifying the boundary limitation of criminal property,that is the boundary limitation of potential damage offenses and actual damage offenses.