风险刑法的基本问题研究

On the Basic Problems of Criminal Law in Risk Society

风险刑法是应对风险社会而形成的刑法观。它以防范风险为刑法的基本任务;重视行为本位和刑罚的一般预防目的;在因果关系领域则主张客观归属理论。风险刑法虽然在化解风险具有一定的积极意义,但是也存在违背传统刑法基本原则和刑法谦抑性、处罚界限不明确等问题。应对风险社会的挑战,我国刑法的对策不是基本立场的背离和机能的转变,而是对谦抑性的捍卫与犯罪多元治理的实践。

Criminal law in risk society is a criminal law concept to deal with the risk. Its basic task is to guard against the risk. It emphasizes on behavior worthless and general prevention of punishment. It is in favor of objective causal attribution theory in the causal relationship area. Although criminal law in risk society has a positive effect in resolving the risk, it is contrary to the basic principles of traditional criminal law and the modesty of criminal law. Meanwhile the boundaries of punishment are not clear. Respond to the challenges of risk society, our criminal law response is not a departure from its basic position and function, but defenders of Modesty and diverse governance practices of crime.