| 风险刑法理论的批判与反思 |
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| 引用本文： | 南连伟.风险刑法理论的批判与反思[J].法学研究,2012(4):138-153. |
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| 作者姓名： | 南连伟 |
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| 作者单位： | 中国政法大学研究生院 |
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| 摘 要： | 风险刑法理论曲解了风险社会理论,尤其是风险范畴的真实含义,混淆了风险社会的风险与传统社会的风险。该理论针对的是传统社会的风险,它对于传统刑法理论的颠覆是无根据的。风险社会的风险具有全球性、未知性、系统性、两面性,在古典工业社会的背景下,它们被合法化为现代化的"潜在副作用",古典工业社会的刑法无法化解风险社会的风险。风险社会的危机属于系统危机,需要系统性地解决,这首先有赖于科学和政治的制度性反思。面对风险社会的危机,刑法既不应无所作为,也不应鲁莽冒进,而应当是反思性的。
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| 关 键 词： | 风险刑法 风险社会 刑法反思 |
Reflection and Criticism on Theory of Risk Criminal Law |
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| Nan Lianwei.Reflection and Criticism on Theory of Risk Criminal Law[J].Chinese Journal of Law,2012(4):138-153. |
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| Authors: | Nan Lianwei |
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| Affiliation: | Nan Lianwei |
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| Abstract: | Ulrich Beck,the famous sociologist from German,published a book named Risk Society in the year of 1986,in which Beck advanced the theory of risk society.Those devastating global risks talked by the theory of risk society are specific.There are some typical paradigms of risk can be confirmed now,which are the nuclear risk,the genetic risk,toxic substances,the financial crisis and terrorism.They have essential differences from those traditional risks as traffic accidents and mine accidents.Simply speaking,they can not be controlled effectively in the industrial society.On the contrary,they will become more and more serious under the traditional logic of risk control.We can not eradicate those risks completely,and some residual risks must exist.Residual risks can be tolerated in the field of traffic or mining,but they can not be tolerated in the field of nuclear,gene,and biochemistry. Once advanced,the theory of risk society got responses from many fields,such as anthropology,sociology,and science of law.In order to resolve the crisis of risk society,criminal law scholars from German firstly advanced the theory of risk criminal law.Recent years,domestic scholars also advanced the theory of risk criminal law,which is different from the former.However,the domestic theory of risk criminal law wrests the theory of risk society,especially the true meaning of risk.It confuses the risks of traditional society with those of risk society.In fact,what the theory of risk criminal law wants to resolve are still the risks of traditional society,so it has no reason to subvert the basic principles of traditional criminal law.The risks of risk society have four characteristics.They are global,unknown,systematic and double-faced,which conflict with the essence of the criminal law.In the classical industrial society,those risks are defined as the potential side effects of modernization,which can not be resolved by the criminal law of classical industrial society.In order to defuse the crisis of risk society,we have to take systematic measures.First of all,science and politics must rethink themselves.Faced with the crisis of risk society,criminal law should not be negative or radical.The proper standpoint should be reflective. |
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| Keywords: | risk criminal law risk society reflection on criminal law |
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