Reflection And Regulation On The Concept Of Positive Preventive Criminal Law And Its Risk Control

In recent years,the revision of China’s current criminal law has shown two obvious characteristics: one is to expand the scope of crime,and the other is to increase the intensity of criminal punishment.Specifically,in the field of criminal punishment,criminal clusters have been expanded;In terms of the intensity of criminal punishment,the modification of the statutory punishment for the original criminal law charges has shown obvious characteristics of increasing the intensity of punishment,such as expanding the scope of application of property punishment.From a macro perspective,this amendment conforms to the changes in social situations,while from a micro perspective,it is based on a reflection on the current secondary sanctions system and the evolution of contemporary legal interest theory in China,and focuses on implementing and embodying the value guidance of the proactive criminal law concept.Some scholars criticize it from a negative perspective of criminal law,and their arguments are basically supported by classical conceptual criminal law thoughts.This theory assumes a high degree of rationality as the premise,using actual harm as the prototype of criminal behavior,determining the scope of punishment for clear and limited practical violations,and linking punishment to social justice and retribution.From this perspective,the traditional concept of criminal law is obviously conservative,so it is inappropriate for China to thoroughly implement the criminal law concept based on the enlightenment ideology after the middle of the 18 th century.It will inevitably face the difficulties of traditional criminal law theory not being autonomous in current criminal legislation,as well as the difficulties of social changes as the object of adjustment,and the difficulties of traditional criminal law theory not being able to adapt to the development needs of modern society.Different from the traditional perspective of criminal law,the proactive and preventive perspective of criminal law pays more attention to the "social governance law" attribute of criminal law.Starting from the perspective of social governance,it emphasizes the social defense function of criminal law,and promotes the gradual transformation of the function of criminal law from ex post facto retribution to ex ante prevention.This transformation has both theoretical significance and practical foundation.It is the result of the endogenous logical deduction of the concept of criminal law,and is also influenced by the constantly changing social situation.Therefore,from the perspective of generation basis,the social background at the macro level,as well as the sanctions system and the evolution of legal interest theory at the micro level,provide a legitimate basis for the positive preventive criminal law view.In the process of criminal law participating in social governance,proactive and preventive criminal law has practical significance,but excessive expansion of legislation requires vigilance.First of all,in the future,when faced with countless appeals for punishment due to rising anxiety among citizens,China’s criminal law legislation must strengthen the empirical basis of legislation as much as possible,repeatedly demonstrate the draft legislation,listen to expert opinions,and minimize advocacy legislation;Give full play to the legislative critical function of the concept of constitutional legal interest,and achieve reflective control of legislation from the theoretical origin of legal interest;Secondly,on the issue of criminalization,pure control thinking should be excluded,and a comprehensive interest measurement should be carried out based on the protection of comprehensive rights;Finally,from the perspective of achieving appropriate punishment,China should continue to adhere to the legislative model of a unified criminal code,in order to achieve risk control of the proactive criminal law concept,and ensure that the proactive criminal law legislative concept operates within the framework of the rule of law.