论抽象危险犯的刑事可罚性判断——以立法与司法的二元立场为视角

Research on the Substantial Judgment of Abstract Potential Damage:In the Binary Stand of Legislative Fiction and Judicial Determination

抽象危险犯适应现代社会风险管控的要求,成为刑罚权扩张的手段,但这可能带来过度干涉个人自由的后果。对此,刑法理论提出从实质立场对抽象危险犯的可罚性进行判断的理论,主张以现实的危险状态存在与否作为抽象危险的认定标准。传统的实质判断论对立法依据上的危险与司法依据上的危险做对立的考察,难以满足抽象危险实质判断的要求。二元的实质判断论主张应当在立法与司法的立场下理解抽象危险犯,首先对抽象危险做立法依据的分类,然后分别判断不同类型的抽象危险在司法认定上的具体要求。

As a means of penalty expansion,abstract potential damage offence can be managed to cope with the demands of risk control in modern society. The penalty expansion would have negative consequences for citizen freedom; therefore the theory of substantial judgment was raised,offering that it is the real risk that should be the judging standard of abstract potential offence. Traditional substantial theory views the risk as legislative basis and the risk as judicial determination in the opposite relation,which cannot meet the demands of abstract potential damage judgment. The two-dimensional substantial theory proposes that the abstract potential damage should be judged in the binary stand of legislative fiction and judicial determination. First the abstract potential damage should be classified as legislative basis and then judged according to the concrete requirement in judicial determination.