风险社会的刑法风险及其防范

在风险社会刑法出现了一些新动向:刑法的任务由保护法益转向保护国民的安全感;预防理念从消极预防转向积极预防;犯罪圈不断膨胀;传统归责理论有所突破。这些新动向使刑法在遏制风险的同时,自身也潜藏着风险:一是不利于实现社会福利最大化;二是可能导致泛刑法化与重刑化;三是刑法的自由保障机能被弱化;四是责任原则有大范围超越的风险。要消除这些风险,必须平衡好允许的危险与禁止的危险的关系;协调好自由保障与风险防范的关系;权衡好成本与收益的关系。总之,"最好的社会政策也是最好的刑事政策"这句名言在今天仍然应当被坚持。

The Risk of Criminal Law and Its Prevention Measures in the Society of Risks

With regard to a society of risks, there are new trends in criminal law as follows. The mission of criminal law has shifted from protecting legal interests to assuring safety of citizens. The prevention philoso- phy has altered from negative prevention to active prevention. The circle of crime is ever expanding. And the traditional culpability theory has a breakthrough to some extent. It should be noted that these trends which aim to control risks have inherent risks themselves. For instance, it is not beneficial to maximize social welfare; it may result in proliferation of criminal law and aggravation of culpability; the function of safeguarding freedom by criminal law is being weakened ; and the liability principle is under the risk of go beyond the proper scope. For the purpose of risk elimination measures, it coordinate between freedom safeguard and risk that “the best social policy is the best criminal is required to balance the permitted and forbidden dangers; to prevention; to analyze cost and benefit. In sum, the maxim policy”is still sound today.