“预防性”:恐怖活动犯罪刑罚的一个转向

“Preventive”: a Shift in the Penalty for Terrorism Crimes

预防刑法理论突出刑法的预防功能,对世界各国刑罚立法及司法实践产生影响,并在恐怖活动犯罪刑罚领域造就"预防性"转向结果,这一转向的正当性应被肯定。我国恐怖活动犯罪刑罚配置存在缺憾,表现为保护功能的不足和改造功能缺失。对此有必要在预防刑法理论指导下,从制度设计、实践需求和外围保障三个层面推进刑罚的"预防性"转向,以实现保护社会公共法益的目的。

The theory of preventive criminal law,which protrudes the preventive function of the criminal law,has influenced the penalty legislation and judicial practice of all countries in the world. In the meanwhile,the theory abovementioned has turned the target of the penalty to the terrorist activities from "Punitive"to "preventive",the legitimacy of such turning shall be affirmed. In China,the allocation of the penalty to the terrorist activities still has some defects,which to be specific,such allocation does not realize its protective function sufficiently,and the function of reform has not embodied yet. With the aim of protecting the public legal interests,it is essential to transform the target of the penalty to the terrorist activities into a "preventive"field under the guidance of the theory of preventive criminal law,from the aspects of system design,practical needs and external safeguard.