风险社会的刑法调适——以危险犯的扩张为视角

The Adjustment of Criminal Law in Risk Society:From the Perspective of the Expansion of Potential Damage Offence

风险社会的实质是人类在从现代技术手段获益的同时,却无法完全掌控这些手段,陷入对自身行为所可能带来的风险无法预测与控制的境地。风险社会的风险源于人的决策与行为,因此,如何有效管控人的行为,最大限度地规避与控制各种潜在风险,成为人类社会所面临的共同任务。作为社会调控最后手段的刑法也必须针对当前的风险状况及时做出回应。现行刑法基于传统的以实害犯为主的立法模式,无法有效地规制各种风险行为。危险犯的立法设计,特别是抽象危险犯的设置,能够将刑法的保护防线提前,从而达成法益保护的早期化,有利于对社会共同体的安全保障,是应对风险行为的有效处置手段。

People is drawing the support from modern technology but they cannot control it completely, which makes people cannot predict and control the risk from their own behavior. That is the essence of the risk society. The risk in this society results from decisions and actions of people. Therefore, how to manage the behavior of people to avoid and control various potential risks, is a common task of human beings. As the final measure of social adjustment, the criminal law ought to give an instant response to the current circumstance of risk. The existing criminal law is based on the legislative pattern of actual damage offense, which cannot effectively manage the behaviors of risk. The legislative design of potential damage offence, especially the abstract potential damage offence, can push forward the defensive line of criminal law, which can achieve the early offense of legal interest and ensure the security of the social community. Consequently it＇ s an effective way to deal with the behavior of risk.