功利主义视角下积极预防性刑法观的理性反思——以《刑法修正案(十一)》增设危险犯为切入点

Rational Reflection on the Concept of Positive and Preventive Criminal Law from Utilitarian Perspective: The Addition of Potential Damage Offense through Amendment Ⅺ to Criminal Law as a Starting Point

风险社会背景下,受功利主义形塑的积极预防性刑法观的影响,我国《刑法修正案(十一)》大量增设危险犯,契合了社会治理对风险预防的需要。由于集体法益的人为选择性、抽象性、模糊性等特征可能会造成刑法保护过度化,在刑事立法增设危险犯的过程中需要遵循必要性原则、均衡性原则、协调性原则,在刑事司法适用危险犯的过程中应以法秩序统一性原理为基础,回归个人法益保护理念,实质判断“情节严重”等构成要件要素,从而明晰积极预防性刑法观在风险社会的适用限度,在防控社会风险、维护社会安全的过程中均衡保护公民的自由权利。

Against the background of risk society and influenced by the concept of positive and preventive criminal law evolving under utilitarianism, China has added a large number of potential damage offenses to the Criminal Law through the Amendment Ⅺ, in order to meet the needs of social governance for risk prevention. As the collective legal interest can be artificially selected, abstract or fuzzy, it may lead to excessive protection under the criminal law. Therefore, the principle of necessity, the principle of balance, and the principle of coordination should be followed during the process to add potential damage offenses through criminal legislation. Meanwhile, when applying potential damage offenses in criminal justice,we should take the principle of unity between law and order as the basis, regress to the concept of protecting individual legal interests, and decide the constitutive elements such as "serious circumstances" in essence. Only in this way, can we grasp the application limits for the concept of positive and preventive criminal law in the risk society, and protect citizens’ freedom and rights in a balanced way during the process of preventing and controlling social risks and maintaining social security.