Legal And Economic Analysis Of The Rationality Of Symbolic Criminal Law-On The Judgment Of The Effectiveness Of Criminal Legislation

The concept of symbolic criminal law originates from the challenge of the existing criminal legislative concepts posed by the risk society,and it belongs to the legislative phenomenon under the risk criminal law system.In the field of Chinese criminal law,the research on symbolic criminal law generally shows a negative attitude towards this legislative model,with the difference being that some scholars completely deny its validity,while others partially acknowledge its rationality.However,the existing academic research on the effectiveness of symbolic criminal law is mostly biased,and there is a misunderstanding regarding the relationship between the applicability of the offense and the legislative effectiveness.Legislative effectiveness is the core criterion for evaluating the rationality of criminal legislation.Therefore,the conclusion that denies the rationality of symbolic criminal law is unreliable.From the perspective of law and economics,the applicability rate of the offense is not an essential indicator for judging legislative effectiveness,and there is not necessarily a static one-to-one correspondence between the applicability rate of the offense and legislative effectiveness.The correct way to evaluate legislative effectiveness is to examine the changes in the trend of criminal activities and the number of cases before and after legislation.When criminal activities are significantly suppressed after criminal legislation,we can evaluate that the criminal legislation has effectively deterred crime,and its effectiveness can be reflected accordingly.On the other hand,symbolic criminal law can also bring legislative effectiveness.The effectiveness of symbolic criminal law is reflected in supporting social moral concepts,promoting individual and social welfare,and helping legislation conform to the public’s sense of justice.Therefore,it can enhance the deterrent effect of criminal law,control private remedies,and avoid public resistance to the judiciary.From the perspective of the effectiveness of criminal legislation,symbolic criminal law should be divided into three categories:symbolic criminal law with low applicability rates due to effective deterrence,symbolic criminal law with low applicability rates due to objectively low crime occurrence rates,and symbolic criminal law that does not produce any regulatory effect on criminal behavior.The first two categories of symbolic criminal law are rational,while the third category of symbolic criminal law should be criticized.