论积极刑法观下黑社会性质组织犯罪

On the Crime of Criminal Organization Under the Positive View of Criminal Law

采用积极刑法观融入黑社会性质组织犯罪司法实践中,如降低入罪的门槛、扩大犯罪圈、提前处罚的时间节点、加大处罚力度和刑法介入社会生活的早期化,预示着刑罚从报应刑向预防刑转变的过程中,刑事立法转向行为本位,刑罚范围的扩大显得不可避免。积极刑法观下黑社会性质组织犯罪回应了社会发展的需要,实现了刑法的法益。

The connotation of the positive criminal law view mainly includes three aspects:ideology,legislation,and judiciary.It emphasizes that criminal legislation should actively respond to social conditions and public concerns,and at the same time,criminal governance means should be considered in the overall legal order and social governance system.The adoption of a positive view of criminal law into the judicial practice of crimes committed by criminal organization like organizations,such as lowering the threshold of crime,expanding the circle of crime,the time node of early punishment,increasing the intensity of punishment and the early involvement of criminal law in social life,indicates that in the process of the transformation of punishment from retributive punishment to preventive punishment,criminal legislation will turn to behavioral standard and the expansion of the scope of punishment is inevitable.Under the positive criminal law view,the organized crime of triad society responds to the needs of social development and realizes the legal benefits of criminal law.