社会风险的刑法调控及其模式改造

Regulation of Social Risk through Criminal Law and the Its Model Reform

转型时期社会风险的增加及其复杂性格局,带来刑法发展中犯罪化扩张的态势,刑法立法预防与控制社会风险的意图明显。我国刑法由回应到预防功能性转变的根源是风险刑法,这既使罪刑构造呈现“四化”发展态势,又使法教义学出现“五新”发展特色。面对这种态势与特色,刑法理论如何摒弃以风险社会证成风险刑法的简单化逻辑,把集体法益的科学保护代入风险刑法,分析与论证风险刑法带来的模式转变及成因,理性看待风险刑法“既回应社会安全之需求,又一并带来刑法风险”的法治悖论,是刑法理论的重大命题。风险刑法的理论定位和方法选择的方向是,重视“法益保护+刑法的谦抑性+后果考察”的犯罪化根据,提倡二元化犯罪模式创新,对集体法益进行限缩解释,以此消解自身带来的刑法风险,构建一种具有生命力的新模式。

The increase in social risks and their complex pattern in the transition period have led to an expansion of criminalization in the development of criminal law. Criminal law legislation manifests an obvious intent to prevent and control social risks. The root of this functional change from response to prevention in Chinese criminal law lies in risk criminal law;this leads not only to the appearance of the “four trends” of development in the constitution of crimes, but also to the “five new” developmental features in legal dogmatics. Given these trends and features, criminal law theory faces a major proposition: how can we abandon the simplistic logic of justifying risk criminal law on the pretext of risk society, bring the scientific protection of collective legal interests into risk criminal law, analyze and demonstrate the situational changes and the causes of such changes brought about by this type of law, and rationally consider the rule of law paradox which states that risk criminal law “while responding to society’s need for security, brings with it criminal law risk.” In the theoretical orientation and choice of method of risk criminal law, one should attach importance to criminalization based on legal protection + criminal law restraint + examination of consequences;advocate innovation in the dualistic criminal model;and make a restrictive interpretation of collective legal interests, so as to reduce the risks brought about by criminal law itself and create a new and vital model.