风险社会与刑法撤退

Risk Society and the Retreat of Criminal Law

自1986年乌尔里希.贝克首次提出"风险社会"的概念以来,风险问题已经深入整个社会的现代化进程中。在此背景下,有必要对安全、制度的冲突与风险刑法进行深刻反思。立足于从责任主义、法益保护和刑法的谦抑精神三个方面分析风险社会与刑法的关系,刑法撤退的原因,既在于责任主义以及以法益保护为核心所构建的刑法体系的要求,又在于风险社会下除刑法之外的社会制度的有效性。

Ever since the proposition of the concept of ＂risk society＂ by Ulrich Beck in 1986, risk issues have been regarded as one of the key issues in the process of modernization of a society. In introspection of the content of the risk law and the conflict between the security and the social system, the author seeks to clarify the rela- tionship between the criminal law and the risk society. Discussion shall be made from three aspects--culpability, protection of the legal interest and the restraining spirit of the criminal law, in order to justify the point that the reason for the retreat of the criminal law not only lies in the culpability and the requirements of the system of criminal law which is based on the protection of the legal interest, but also in the effectiveness of the social regimes apart from criminal law.