论刑法中抽象危险的实质判断——以立法与司法的互动关系为视角

On the Substantial Judgement of Abstract Potential Damage in Criminal Law——Under the Mutual Relationship 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。对此刑法理论提出抽象危险的实质判断论,主张以现实的危险状态存否作为抽象危险的认定标准。传统的实质判断论仅从一元的角度,对立法依据上的危险与司法依据上的危险作对立的考察,难以满足抽象危险实质判断的要求,二元的实质判断论认为应当在立法与司法互动关系的视角下对抽象危险进行判断。

As a means of penalty expansion, abstract potential damage offence can manage to cope with the demands of risk control in morden society. The penalty expansion would have negative consequences for citizen freedom, therefore the theory of substantial judgement was raised, offering 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 the abstract potential damage should be judged under the mutual relationship of legislative fiction and judicial determination.