我国生物刑法的困境与出路

The Dilemma and Outlet of Biological Criminal Law in China

随着生物安全法治建设的稳步推进,我国生物刑法成为新兴领域,体系日渐成熟,但也存在保护不严密、定位不准确、预防不到位之困局。从理论上分析,生物刑法属于弱预防性刑法,刑法保护的早期化与严密化是生物刑法的规范取向,也是其摆脱困境的出路。刑法保护的早期化强调基于“防患于未然”的立法政策,以抽象危险犯合理划定个罪的犯罪圈,即立法者需要在合理评估生物安全风险并对之进行类型区分的基础上,针对不同生物安全风险设置不同的危险犯类型。刑法保护的严密化意味着生物刑法需结合生物安全风险的新类型而增加相关罪名,以堵截处罚漏洞。

With the steady progress of the construction of bio-safety rule of law,China’s biological criminal law has become a new field,and the system is becoming more and more mature,but there are also some difficulties,such as the protection is not strict,the positioning is not accurate,and the prevention is not in place.Theoretically,biological criminal law belongs to weak preventive criminal law.The early and strict protection of criminal law is the standard orientation of biological criminal law and the way out of its predicament.Based on the legislative policy of“prevention in advance”,the early protection of criminal law emphasizes the rational delineation of crime circle by abstract dangerous crime,that is to say,on the basis of reasonable assessment of bio-safety risks and differentiation of their types,legislators need to adopt different types of dangerous crime according to different bio-safety risks.The strictness of criminal law protection means that the biological criminal law should try to add related charges with the new types of biosafety risk,so as to plug the loopholes of punishment.