《刑法修正案（九）》第120条前置化规制的法理探析

《刑法修正案（九）》第120条的前置化规制是保护重大法益的必要手段，对其正当性的讨论为当前立法和司法突破和扩张的态势提供了法理依据。敌视社会基本规范和恐怖犯罪的预备或预备的预备行为已呈现出侵害重大法益的抽象危险，具备了前置化规制预备行为的前提要素；在识别敌人刑法争议的根源并加以理性辨别的基础上，从立法目的都是社会要保护自身免受该违法者的侵犯之角度，前置化规制的依据与某些敌人刑法的理念存在有限的内在暗合，但不可否认，尚未成熟的敌人刑法亦与前置化规制存在疏离之处；而敌视基本法规范且具有抽象危险的实质预备犯满足了前置化规制现实依据的要求。其处罚边界亦需遵循，应根据行为方式和特征进行司法定量限制及限缩解释。

Jurisprudential Analysis of Rules on Criminal Punishment in Advance in Accordance with Article 120 of the Ninth Amendment of the Criminal Law

Rules on criminal punishment in advance which are regulated in Article 120 of the Ninth A-mendment of the Criminal Law are necessary approaches to protect substantial legal interests. Discussion on the legitimacy of the rules can offer jurisprudential ground for both legislative and judicial breakthrough and expansion. Conducts such being hostile to basic social norms and terrorist activities in preparation or those prior to preparation have shown great abstract danger to infringe substantial legal interests,thus these con-ducts have constituted premise elements of preparation which should be punished in advance. On the basis of defining and further rationally distinguishing controversies over criminal law against enemies,it is held that the legislative purpose is to protect society itself from being infringed by those who violate the law. In this regard,the ground for rules on punishment in advance has limited overlapping conceptions with criminal law against enemies,however it cannot be denies that they are rather different since the criminal law against enemies is still immature. Therefore,conducts such being hostile to basic social norms and substantial prep-arations with abstract dangers have met the requirements of being punished in advance,which should be definitely punished according to their manners and features subject to judicial quantitative limitations and re-stricted interpretations.