论恐怖主义犯罪罪名体系的演化及其本质——以《刑法修正案(九)》相关涉恐条款为中心

On the Evolution of Terrorist Crimes and Their Essences: Taking the Clauses regarding Terrorism in the Ninth Amendment of Criminal Law as the Center

《刑法》中有关恐怖主义犯罪的条款在逐步地增多,整体上呈现出不断犯罪化的特征,尤其是《刑法修正案(九)》的颁行,反恐刑事立法存在着明显的"规制前置化"和"刑罚从严化"的特征。此种立法模式的表面动因是反恐斗争形势所需,但实质却在于风险社会中风险刑法的不断犯罪化以及违法性本质的行为无价值立场,具有明显的新刑法工具主义痕迹。为了恐怖主义犯罪刑事立法的科学化,既要坚持理性立法,力戒外界情绪干扰;又要摒弃工具论盲从,不搞象征性立法或应急式刑法,从而让涉恐刑事立法始终保持正当。

The clauses regarding terrorism in criminal law have become more and more, showing the feature of continually criminalizing, especially for regulations in advance and severe punishment after the ninth amendment of criminal law was issued. The shallow reason of this legislative model is the need for anti-terrorism while its essences are the continuous criminalization of risk criminal law under the risk society and the behavioral incrimination of illegality. They express the characteristic of the new instrumentalism of criminal law obviously. In order to make the anti-terrorism legislation more scientific and justifiable, on the one hand, we need insist rational legislation without external disturbance, and on the other hand, the instrumentalism of criminal law should be given up, and no symbolic legislation or creating some criminal clauses for several temporary emergency situations are tolerated.