Research On The Basic Theories Of The Risk Criminal Law

The Risk Society, as a modern concept, was proposed and caused great repercussions insocial sciences. The concept warns us that our society has entered into a new age of risksociety, and proposes a spirit of the Reflexive Modernization for us to prevent and control therisk. Under the spirit, Criminal Law, as an important means of risk prevention and control,will be referred to an important position. Nevertheless, the Criminal Law, which is wellknown for its conservatism, is facing a devastating impact. Because of that, the Risk CriminalLaw as a research project is getting widespread attention by domestic and foreign scholars.Without doubt, the research of the Risk Criminal Law is just at a preliminary stage in the fieldof criminal jurisprudence, and the discussion focuses on whether to introduce the concept ofthe Risk Criminal Law, or more specifically, how to demonstrate the rationality of the RiskCriminal Law. The predicament will be broken and the discussion of the Risk Criminal Lawwill be extended to basic theories from the rationality in this thesis. That is the main missionand purpose of this thesis.Through analysis our current society under the spirit of the Reflexive Modernization, oursociety is defined as the Risk Society of Compressed Modernization in which the traditionalrisk coexists with the modern risk, and then, the objective basis and the theoretical basis of theexistence of Risk Criminal Law is demonstrated and the Risk Criminal Law is given anexisting status. Based on the legal interest protectionism, the Risk Criminal Law is notindependent or excepts from the Traditional Criminal Law，not as the view by reform groupunder the violating norms doctrine. The methods for setting the exception from principle willeliminate the principle, because more and more exceptions will be presented in our society.So this thesis will stand in the conservative view to research the basic theories of the RiskCriminal Law. That is to say, the Risk Criminal Law System will be constructed under thetheoretical paradigm of the Traditional Criminal Law. However, the conservative views inthis thesis are radical. Although strictly observed the basic principle and theories of theTraditional Criminal Law, such as the legal interests protectionism, principles ofresponsibility for an offence, the objectivism of criminal law, the theories of the TraditionalCriminal Law should be reformed because of its own drawbacks. So the “Criminal Responsibility—Crime—Punishment” Criminal Law System is purposed, and the objectelement will be transferred to the category of the Criminal Responsibility and the concept ofcrime from the constitution of a crime. On the basis of this paradigm, the Risk Criminal LawSystem will be constructed, and includes the Criminal Responsibility Theory which solves theproblem of the crime circle, the Crime Theory which pays attention to the constitution of thecrime, while the Punishment Theory which deals with the problem of the purpose and thesetup of punishment. Generally speaking, with the radical views of the conservatives, thisthesis combines a variety of disciplines, such as sociology, policy science, game, philosophy,and adopts a variety of analytic methods, such as logical analysis, empirical analysis, functionanalysis, comparative analysis, to construct the basic theories of the Risk Criminal Law whichis compatible with the Traditional Criminal Law. This thesis includes five chapters exceptintroduction and conclusion.ChapterⅠ Competition Between The Traditional Theories and The New TheoriesUnder The New Situation This chapter particularly states the objective basis and thetheoretical basis of the existence of Risk Criminal Law. The main argument in Chapter Ⅰisthat though the analysis of the historical process of the western Risk-Society theories andreviewing our current society objectively by the spirit of Reflexive Modernization, theobjective basis and the theoretical basis of the existence of Risk Criminal Law isdemonstrated and the standpoint in this thesis will be confirmed after analyzing academiccontroversy in China about the Risk Criminal Law. First, the first section of this chaptersummarizes the basic characteristics of the western risk society by analyzing the historicalprocess of the risk control, and analyzes the western Risk Society Theories, especially theUlrich Beck’s Risk Society Theory, and the western Risk Criminal Law Theories. Thesewestern theories which are put forward for risk prevention and control give us a lot ofimportant enlightenments. Second, combining the spirit of the Reflexive Modernization andthe vivid examples in China, the second section of this chapter demonstrates the current stateof the Chinese society, namely the Risk Society of Compressed Modernization, in which thetraditional risk coexists with the modern risk. So Chinese Society is more complex thanWestern Society in the post-industrial era. It seems that the Traditional Criminal Law shouldbe facing a devastating impact. Third, in order to overcome adversity, the third section of thischapter analyzes our academic responses to the issue for introducing the Risk Criminal LawTheory, and summaries the views of three schools, including the criminal policy school, the reform school, the conservatives. For the argument of the relationship between the TraditionalCriminal Law and the Risk Criminal Law, this thesis opposes the method of principle andexception which is employed by the reform school, and supports the conservatives’viewpoints in which the Risk Criminal Law will be included into the Categories of theTraditional Criminal Law. Of course, the views of the criminal policy school will be stood byin this thesis, for its strong affinity views. The difference from the conservatives’ viewpointsis that standpoint in this thesis is radical, so called the radical views of the conservatives. The“Radical” means the principled reformation to the Traditional Criminal Law. The“Conservative” means that the Risk Criminal Law System will be constructed on the basis ofthe Traditional Criminal Law.Chapter Ⅱ Research Paradigm——Reform of The Traditional Criminal Law Thischapter will investigate fundamental issues about the theoretical system and the theoreticalbasis of the Risk Criminal Law. Using the methods of analyzing of external and internalcauses, dissecting the insufficiencies of the Traditional Criminal Law, and combining newcharacteristics of the current society, the criminal law system which can overcome theseinsufficiencies will be constructed. As a framework, the system will be used to analyze theRisk Criminal Law. In the first section of this chapter, through analyzing the relationshipamong Criminal Responsibility, Crime and Punishment, the “Criminal Responsibility—Crime—Punishment” Criminal Law System will be constructed and be applied to criminallegislation and justice. In the second section, the German and Japanese criminal constitutiontheory will be re-cognized, and the advantages and disadvantages for our traditional criminalconstitution theory will be reflected. Thereafter, criminal object, or called legal interest, willbe detached from the criminal constitution, and as the superior concept of the criminalconstitution, be endowed with screening function. So the criminal constitution will becomeplanar structure and include only three constitutive elements of the crime. In the third section,the controversy between the Theory of Violating Legal Interests and the Theory of ViolatingNorms will be analyzed, the danger of legal interests’ extinction will be discovered, theviewpoints of the legal interests protect will be hold, the concept of legal interest which isdefined by the formation mechanism of legal interests which includes the relationship amongindividual, society and law will be referenced, and the philosophical relationship betweenprocess and state, so the new theory of violating legal interests, namely the Process&StateTheory of Violating Legal Interests, will be put forward. Chapter Ⅲ The Criminal Responsibility Theory of The Risk Criminal Law—Delimiting The Crime Circle This Chapter, as the hard-core of this thesis, delimits the crimecircle of the Risk Criminal Law through the re-understanding theory of violating legalinterests, the guidance of criminal policy and the integrating of the Deliberative Democracy.Firstly, basing on the Process&State Theory of Violating Legal Interests, drawing lessonsfrom the Balance Theory put forward by the former Soviet Union scholar Bukharin and usingthe method of function, the first section of this chapter will reveal the criminal essence in theRisk Criminal Law, namely the risk state which the Criminal Law cannot tolerate. Risk, as apossibility of violating legal interests, will most likely be actualized and cause the disastrousconsequences. Of course, under certain conditions, various components of risks are in thestate of a relatively dynamic balance and will not cause the disastrous consequences. Thispoint is called the Relative Balance Theory of Risks. It seems very difficult to find the factorswhich should be imputed. That is the uncertainties of risk. Criminal Law takes a tolerancetoward the risk in the state of the relative balance. Criminal Law cannot tolerate the factorswhich create, arouse and increase the risk, break the state of the Relative Balance and lead toan unbalance state. These factors enter into the law scope must have the artificial features.That is, it must be a certain behavior processes which are committed by the behavior subjectwho at least has a certain free will. It is compatible with the principles of responsibility for anoffence in the Traditional Criminal Law. Because of the prominent factors which broke thestate of the Relative Balance, we can cognize and evaluate it. The factor will be imputed bylaw, including constitutional law, civil and commercial law, administrative law and criminallaw. Without doubt, the Criminal Law is the last level among these and the Risk CriminalLaw regulates the risk as the last protection. Of course, the traditional consequence criminallaw will be applied, when the harmful consequences appear. That will embody the principleof modesty. Through a series of the discussion, this section interprets the theory of ViolatingLegal Interests in the Risk Criminal Law. In order to demarcate the boundaries whether theCriminal Law tolerates or not, the basic criminal policy of Temper Justice with Mercy and thespecific criminal policy of Rigor but Not Severity are regarded as guidance, and the valuecriterion of the order value in the freedom boundary and the justice value embodying theefficiency is established. Relationship between the Mercy and the Rigor embodies the valuesof Criminal Law. In the criminal policy of Rigor but Not Severity, Rigor means theincreasingly tight criminal law net, legal interests pre-protection and the expansion of crime circle, and the Not Severity means the Mitigation of Punishment. Finally, this chapter uses theprocedure of the Deliberative Democracy, not a substantive test, to demarcate the boundariesof the Rigor and the Not Severity.Chapter Ⅳ The Criminal Theory of The Risk Criminal Law—The Constitution ofCrime Through the analysis of the constitutive elements of crime, this chapter will discussthe subject about the crime constitution of the Risk Criminal Law which is not systematicallydiscussed in our country. The first section of this chapter discourses the objective element ofcrime, including the risk, the criminal act and the attribution&imputation of the RiskCriminal Law. According to the Process&State Theory of Violating Legal Interests, theoccurrence mechanism and the constitution of the Risk will be analyzed, and the view aboutthe confirmation and the counterevidence of the Risk will be put forward to guide judicialpractice. In the act theory, combining with the Process&State Theory of Violating LegalInterests and the Relative Balance Theory of Risks, the Action Process Theory will beadvanced and be used to analyze the occurrence mechanism of the act in the Risk CriminalLaw. Furthermore, the attribution in the ontology and the imputation in the axiology areregarded as a bridge linking between the act and the risk. In the subjective element, analyzingthe subjective state of the intention and the negligence, the second section in this chapteraffirms the existence of the indirect intention in potential damage offense and restrictedlyadmitted the existence of involuntary dangerous crime. The final part of this sectiondistinguishes the indirect intention and negligence in potential damage offense, basing on theact cybernetics. Last but not the least, In the subject element, in order to avoid the organizedirresponsibility in the Risk Society, the legal person, besides the natural person, will bedeemed the subject of crime in the Risk Criminal Law. The same responsibility standard tothe legal person and the natural person and the Double-track system of the responsibilityinvestigation should be advocated, to ensure the legal person is no longer a shield to thenatural person.Chapter Ⅴ The Punishment Theory of The Risk Criminal Law—Purpose ofPunishment&Not Severity This chapter solves the basic problem about the purpose and thespecific setting of punishment. Standing the principle of the legal interest protection, thepurpose of punishment in the Risk Criminal Law includes the fundamental purpose and thedirect purpose. The fundamental purpose is to protect the legal interests. In the direct purpose,the active ordinary prevention takes a leading role and the retribution and the active special prevention is in the supplementary role. In the issue about the specific set of punishment, theMitigation of Punishment is encouraged and the specific set of punishment, including finepunishment, community service sentence and restorative justice, is advocated.