The Jurisprudential Criticism Of The Positive View Of Criminal Law

In recent years,the concept of risk criminal law has become a focus in the field of criminal law,which not only affects the global judicial system,but also inspires the domestic academia to explore and study this topic in depth.However,for this theory of criminal law,the academic circle is mainly critical voice,only a few people hold a positive attitude.Although there are many differences,the theory of risk criminal law continues to progress,and its concept is more and more extensive,from the prevention criminal law to the security criminal law,and to the functionalist criminal law,there are its figures.The concept of active criminal law originates from the theory of risk criminal law,which involves the concept of crime prevention,but various scholars have different ways of describing it.In China,the criminal law circle has different views on whether the amendment reflects the change of criminal law concept.In the past decade,China has issued 11 amendments to its Criminal law.Criminal legislation shows initiative and flexibility.From the analysis of the content of the revised law,we can see that the criminal law of our country presents an expanding trend,which is embodied in the expansion of crime circle,the implementation of preparatory behavior,the help of behavior criminal and the flexible activation of criminal punishment.With the increasingly complex and changeable risks in modern society,in order to protect the safety of the public and cope with the emerging risks,the criminal law gradually began to take effective measures in advance,broaden its jurisdiction,and pay attention to the protection of collective legal interests.At the same time,criminal legislation has changed from the past negative attitude to a positive attitude,emphasizing active general prevention.The positive view of criminal law is an idea that emphasizes prevention and aims to prevent and reduce criminal behavior by implementing effective criminal measures.However,the expansion of criminal law may lead to over-criminalization,as well as an increase in the amount of symbolic legislation.The positive view of criminal law has caused an impact on the traditional theory of criminal law.The early intervention of criminal law leads to the excessive expansion of the right of punishment,which leads to the conflict with the principle of modesty and restraint,and weakens the function of human rights protection of criminal law.The protection of legal interest advocated by the law is a kind of "beautiful illusion",which not only destroys the rationality of the scope of criminal punishment,but also causes the excessive extension of the scope of legal interest,and the expansion of collective legal interest is more likely to cause the blurring of the boundary between individual legal interest.The positive view of criminal law misunderstands the theory of modesty of criminal law,which leads to its breaking through the principle of proportionality and causing the absence of modesty of criminal law.The positive view of criminal law expands the substantive interpretation of criminal law,weakens the principle of criminal law determination,and will eventually make the state penalty power excessive expansion,thus greatly limiting the rights and freedoms of citizens.This false expectation to the omnipotence of criminal law consumes too much national resources and brings certain hidden dangers to society.In fact,the theory of positive general prevention advocated by the positive criminal law view has logical paradoxes.It is difficult to avoid the conflict with human dignity and the accusation of"circular demonstration",while the continuous expansion of legal crimes that have nothing to do with morality will arouse public disgust and resistance.Therefore,in view of the positive view of criminal law,we should adhere to the premise of constitutional framework,the modest expression of criminal law,the principle of legal interest protection,the principle of proportionality,and the principle of statutory punishment at the judicial level.We should adhere to the appropriate guidance of judicial interpretation,reasonable use of the presumption of innocence,light sentencing,and reasonable restrictions on the expansion of criminal law.In order to avoid the scope of criminal law is too expanded,resulting in the positive criminal law concept itself into a real crisis of risk.