The Rethink And Criticism Of The Risk Criminal Law

Recently,the risk criminal law which on the background of the risk society and with the intent to preventing risk,is popular for a time in our criminal law field. This theory is that the traditional criminal law which was unable to cope with the risk,has to adjust itself and bring forward the criminal law protection limit for reflecting the most important value of safety in the risk society. Based on the value orientation that safety was better than freedom,the theory of risk criminal law advocated the all-side innovation of traditional criminal law and expanding the penalty boundary by adding abstract potential damage offense in order to control risk effectively. These views has attracted criticism among some criminal law scholars, who thought the risk criminal law was a danger theory based on misunderstanding the meaning of risk society. These views has ignored the reality of our country. It will turn over the basic position of modestly restraining spirit of criminal law and aggravate the situation of over criminalization. In order to point out the fault of risk criminal law adequately, this thesis combed through the proposition of risk criminal law,and then came up with the standard of criminalization about modern harmful act. That will contribute to limiting the penalty boundary and protecting civil liberties. This thesis includes six chapters except introduction and conclusion.The first chapter is "the research status of the risk criminal law",divided into four sections. The first section has revealed the genesis of risk criminal law and reviewed the development history of risk criminal law in Germany,Japan and our country. Some criminal law scholars in our country has abused the concept of risk criminal law. The second section combed through the basic logic of the theory of risk criminal law: the traditional criminal law has ran into trouble in risk society.that’s why the risk criminal law which will resolve these trouble conform to realistic needs. The three section is a brief summary, which analysis the different opinions in the supporters and critics,even inside each camp of them.The second chapter is "searching for original of the risk criminal law",divided into three sections. The first section has expounded the theory of risk society which was the sociology basis of the risk criminal law. Based on researching the meaning of the concept of risk and the logic of emergence of risk society,this thesis has com a conclusion that the risk society is the real background for studying the society issue in our country. However,the concept of risk society in our country should be deconstruction and redefine. The second section discuss the bridge between the risk society and the risk criminal law. Risk is not the connection point of them. The risk society is just the realistic context of studying the risk criminal law. The three section is a brief summary,which clarify the risk criminal law is not a new theory but a traditional problem about how the criminal law adapt the development of society.The three chapter is "the realistic foundation of the risk criminal law:’risk’ and ’anxiety’",divided into three sections. The fist section has denied the scientific of getting risk as the basis of changing the traditional criminal law. In the risk society,risk is not increase but the anxiety of people is getting worse. Besides, the criminal law is not the effective way to prevent the risk. The second section has criticized the opinion of the risk criminal law which regarded the security of people as the legal interest of criminal law. Because the security is subjectively and not measured,it can’t meet the requirement of criminal law’s definiteness. Regarding the security as the legal interest of criminal law would not only guide the criminal legislation but also led to the populist legislation. The three section is a brief summary,which has point out although the criminal law should follow the development of society,but it also need to stick the character of itself.The fourth chapter is "the value orientation of the risk criminal law:safety is more important than freedom",divided into four sections. The first section has criticized the concept of criminal of the risk criminal law and pointed out that the typical theory about the concept of criminal of the risk criminal law still followed the theory of violating norms. The theory of incurring risk will threat the freedom of people for it’s puzzling connotation. The theory of enemy criminal law also has been criticized intensely. The risk criminal law will dispel the concept of legal interest which is the core concept of criminal law and not in conflict with preventing risk. The second section has analyzed the view of criminal responsibility and listed some way about extending the boundary of the criminal culpability:the functional criminal responsibility, expanded causality,strict responsibility,vicarious responsibility. Some scholars even regard the theory of objective imputation as apart of the risk criminal law,that’s because they misunderstood the meaning of objective imputation. The three section has discussed the view of penalty of risk criminal law and pointed out the choice of risk criminal law is not the retribution theory but the intention theory. The important function of retribution theory is restricting the penalty. Abusing the theory of positive commonly prevention which was highly prized by the risk criminal law will led to the lack of human rights protection under the severe penalty. The fourth section is a brief summary,which has summarized the unity value orientation of the risk criminal law:safety is more important than freedom,and pointed out the freedom is the most important value at this time in our country.The fifth chapter is "the legislative aim of the risk criminal law:an expanding crime circle",divided into four sections. The first section has discussed the abstract potential damage offense which is the main way to expanding the criminal circle for the risk criminal law. The abstract potential damage offense should be limited by proving the disproof of potential damage and using the function for non-crime. The second section has discussed the difference between natural crime and legal crime. The risk criminal law and the legal crime have a symbiosis. The expansion of legal crime should be restricted. The three section has revealed the practice effect of crime of drunk driving,crime of terrorism,environmental crime was not as good as expected. That proved that penalty is insufficient to deal with the harmful behavior in risk society.The fourth section is a brief summary,which pointed out that the criminalization should be put down.The sixth chapter is"sticking the traditional criminal law in risk society",divided into three sections. The first section has discussed the location of criminal law in risk society and pointed out criminal law should hold the line of guaranteeing the liberty.The second section has studied the limits of criminal legislation from the perspective of drug-driving. The criminal law should stick to the modestly restraining spirit of criminal law. The behavior could be considered a crime when it cause social harm and it can be identified by fair and non-discriminatory way. Besides,the penalty for that behavior should be effective,and there is no other social management tool can be the substitute. According to these standard,drug-driving is inadequacy to be a crime in this time. The three section is a brief summary,which has pointed out the expanding crime circle is a unavoidable tendency in risk society. The problem need to faced with is not how far penalty could replaced the other social management tool,but how to restrict the crime circle to protect civil liberty.