| In modern social life,the values of order and security are becoming more and more paramount in people’s aspirations.In response to this social phenomenon,the Criminal Code has given a clear and positive response through the Criminal Law Amendment Act.Influenced by a positive view of criminal law and preventive legislation,in recent years we have been criminalising and expanding criminal law,and in recent years we have begun to introduce misdemeanours.However,prevention-oriented legislation has been questioned and criticised by criminal law scholars and even non-criminal law scholars.The negative stance holds a rich theoretical and practical basis,unfolding in terms of legislation,justice and the principle of protection of legal interests.Curiously,the introduction of the Criminal Law Amendment Act(IX)and the Criminal Law Amendment Act(XI),which expanded the ranks of misdemeanours,was followed by an even more intense criticism and the pouring of cold water.The intrinsic value of risk prevention and the traditional view of criminal law as "no punishment without infringement of legal interests" seem to be in a natural dichotomy.Positive legislation oriented towards risk prevention has been accused of abandoning the principle of protection of legal interests by departing from the traditional concept of legal interests in criminal law,and of eroding the boundaries of human rights protection through insufficient modesty.At the same time,the affirmative theory is not shy to respond and counter the various challenges raised by the negative theory.In fact,the confrontation between the two sides brings the opportunity to re-examine the principle of protection of legal interests and the principle of modesty of criminal law.This paper selects the concept of expansion and the balancing mechanism of misdemeanour legislation as the theme of the paper.Through four chapters,it analyses the current status and basis of misdemeanour legislation in China,the characteristics of misdemeanour legislation in China and extraterritoriality,explores the different positions of misdemeanour legislation and concludes that China should adopt a substantial concept of legal benefit.By examining the principle of criminal law modesty as a legislative balancing mechanism,the critical function of legal benefit is finally adopted as the research method,and the balance mechanism of this paper is proposed with legal benefit as the end point.Firstly,in order to look at the essence of the phenomenon,it is necessary to clarify the connection between China’s eleven Criminal Law Amendment Acts and the legislation on misdemeanours.China’s Criminal Law Amendment Act has always been based on the main line of criminalisation,starting with the Criminal Law Amendment Act(VI)and creating a total of 24 misdemeanours up to the Criminal Law Amendment Act(XI).The commonality of these misdemeanours is that they punish order violations and protect abstract legal interests such as collective legal interests and public legal interests.When our scholars reflect on criminalisation,they do so against the background of a risk society,a background that also applies to misdemeanour legislation.As can be seen from the evolution of our Criminal Law Amendment Act,criminalisation has continued to advance and the role of criminal law as an "instrumental legal system" has become increasingly sophisticated.On the other hand,with the gradual advancement of penalties,lighter penalties have been allocated accordingly,taking into account the fact that the act did not result in actual harm.Prevention-oriented legislation on misdemeanours has emerged.Secondly,a comparison of the misdemeanour legislation of the United States,Germany and Japan shows that some of them have already realised the "future" that our scholars have envisaged for misdemeanour legislation,while some of them have fallen into the trap of trading in power and money brought about by the lightening of penalties,exposing the "judicial modesty".The deception of "judicial modesty".The expansion of legislation inevitably extends the scope of criminalisation,leading to a rise in the number of criminal cases and increasing the pressure on criminal justice.In response to this pressure,attempts have been made in overseas legislation to decriminalise or simplify proceedings,but the results have not met expectations.On the contrary,the adoption of a substantive concept of legal benefit and a positive view of legal benefit protection in legislation,with earlier penalties for serious crimes,may be able to achieve the purpose of legal benefit protection.Again,this article introduces the different positions of the existing legislation on misdemeanours,clarifies the arguments of the affirmative and negative arguments,and summarises the points of contention between the two sides.On this basis,support is expressed for the affirmative view.The negative view on positive legislation describes the criminalisation of the Criminal Law Amendment Act as "excessive criminalisation of social governance","emotional legislation" and "symbolic legislation",and It has been pointed out profoundly that the expansion of criminal law should not be actively pursued before the decriminalisation of our country has been achieved,otherwise it will result in a situation where our criminal law will be "harsh and severe".However,there is no reason why the interests of the individual should be protected as a core interest of the criminal law,while the safety of the unspecified majority and the interests of order that facilitate this should not be protected by the criminal law.However,the so-called "strict and severe" criminal law system is not the result of misdemeanour legislation,which can,on the contrary,be used to alleviate the heavy penalties on the basis of a tighter legal net.Finally,after clarifying the concept of expansion,there is a need to find a balancing mechanism for misdemeanour legislation.In this regard,the modesty of criminal law has been considered as a balancing mechanism in criminal legislation.However,the existing studies suffer from an over-interpretation of the principle of modesty in criminal law,which has been taken as a guiding principle.It should be considered that the principle of criminal law modesty is not a principle that prohibits legislation,and that no fundamental principle of criminal law is a principle that prohibits legislation.Moreover,the principle of modesty in criminal law places too much emphasis on the "order" between criminal law and non-criminal legal means,which contradicts the retributive purpose of punishment.The critical function of legal benefits should be exercised,denying the dilution and abstraction of legal benefits.The distinction between natural and legal offences,and between dangerous and harmful offences,is not,as scholars say,that legal and dangerous offences do not achieve the protection of individual freedom,but rather whether the individual is the starting point of the offence. |
