风险刑法与公民权利的宪法保障

Criminal Law of Risk and Constitutional Guarantee of Civic Rights

作为应对风险社会的一种刑事公共政策的产物,起源于欧洲的风险刑法理论及其立法实践在我国刑法学界遭到了许多批判。但通过对这些批判的分析发现,风险刑法理论并非如其批判者声称之那样危险。以实用主义为导向的民众共识可以被作为区分"被允许的危险"和"不被允许的危险"的标准,并以此作为"不被允许的危险"行为的入罪根据。风险刑法理论不是对传统刑法理论的革命,而是为应对风险之需要而对传统刑法理论的适当修正和补充。风险刑法是否包含对公民宪法权利构成威胁的风险,归根结底不是一个事实问题,而是一个理论问题。

As the criminal public policy results from social risks, the theory of criminal law of risk as well as its legislation which originated in Europe has received much criticism in China. However, an analysis of such criticism reveals that the criminal law of risk is not as dangerous as described by those scholars. For the pragmatism-oriented appropriateness can be treated as the criterion which distinguishes ＂allowed danger＂ from ＂not-allowed danger＂, consequently, depen- ding on such appropriateness and with the latter classified into crime. This theory is not a revo- lution towards the traditional theory of criminal law, but some amendments and supplements to it with the purpose of handling risks. Whether the criminal law of risk poses a threat to the constitutional right is a theoretical question ratler than a fact.