法定犯时代背景下犯罪附随后果的解构和重建

The Deconstruction and Reconstruction of the Accessory Consequence of Crime in the Era of Statutory Crime

法定犯时代下,后工业社会中各种风险逐渐升格,古典自由主义刑法理论地位受到动摇,刑法制裁体系相应地吸收了积极刑法观理念,前置刑法干预起点,降低入罪门槛,而社会整体评价体系中却缺乏相应的轻罪或微罪评价模式、犯罪分层意识,从而导致刑法附随法律责任引发实质意义上罪责关系的不协调,违反罪刑法定、罪责刑相适应、责任主义原则等问题。同“以刑制罪”对“从罪到刑”的罪刑关系的反思,在意图限缩刑罚的法益理论逐渐沦为为刑法扩张“背书”的情况下,对犯罪附随法律责任的重视能够促进法益判断标准的实质化,从而有利于促进立法批判机能的实现,也能对保安处分科学化和刑罚“双轨制”发展有所裨益。基于新社会防卫论的论证逻辑也应该对附随后果的逆向论证逻辑以及定位做出限制,同时提出犯罪人处遇重构、引入复权制度等具体举措,以期达到法律体系内部法律责任的协调。

In the era of statutory crime,various risks in the post industrial society have been gradually upgraded,and the theoretical status of classical liberal criminal law has been shaken.Accordingly,the criminal sanction system has absorbed the concept of positive criminal law,put forward the intervention starting point of criminal law,and reduce the threshold of incrimination.However,the overall evaluation system of society lacks the corresponding evaluation mode of misdemeanor or minor crime and the consciousness of crime stratification,which leads to the criminal law attached to the law The system of responsibility is accompanied by consequences,which leads to the disharmony of the relationship between crime and responsibility in essence,violation of the principle of legality of crime and punishment,the adaptation of responsibility and punishment,and the principle of responsibility.With the reflection on the relationship between crime and punishment from crime to punishment,the theory of legal interest intended to limit punishment has gradually become the endorsement of criminal law expansion.The importance of legal responsibility attached to crime can promote the substantiality of judgment standard of legal interest,thus playing a certain role of legislative criticism,and also beneficial to the scientific security measures and the development of"double track system"of penalty。Based on the new social defense theory,the logic of this paper should also limit the logic and positioning of the adverse demonstration of the accompanying consequences.At the same time,it puts forward specific measures such as reconstruction of criminal treatment and restoration of rights system,so as to achieve the coordination of legal responsibility within the legal system.