“风险刑法”的反思与批判

发布时间：2018-04-29 12:50

  本文选题：风险刑法 + 风险社会　； 参考：《东南大学》2016年博士论文

【摘要】：近年来,以风险社会为研究背景,以防范风险为目的导向的风险刑法理论在我国刑法学界风靡一时。该理论认为传统的罪责刑法理论应对风险已经力不从心,应当将刑法保护界限向前推置,以反映风险社会以安全为主要价值取向的现实需求。围绕安全凌驾于自由这一价值取向,风险刑法主张对传统刑法理论的罪、责、刑各方面进行全方位的变革,并通过增设抽象危险犯等方式来实现扩大刑罚处罚范围和严密刑事法网的目的,以期能够有效地预防和控制风险。上述主张引发了刑法学界诸多学者的质疑和批判,认为风险刑法理论是在曲解了风险社会涵义的基础之上所衍生出的充满了反法治风险的理论思潮,其颠覆了刑法谦抑的基本立场,忽视了我国当前处于法治建设初级阶段的事实,助推了我国当前不断进行犯罪化刑事立法的势头,应当予以反思和批判。为了更加系统地阐明风险刑法理论的不足,本文梳理并反思了风险刑法理论的系列理论变革和立法主张,并在批判的基础上结合风险刑法立法的实践问题,对风险社会背景之下我国刑事立法的界限进行了思考,提出了风险社会中新型危害行为的入罪化标准,以期约束刑法不断扩张的处罚范围,避免公民的自由与人权遭受侵犯。本文的正文部分共分为六章,主要内容如下：第一章为“风险刑法理论研究现状”,共分为四节。第一节揭示了风险刑法的源起,追溯了风险刑法理论在德日和我国刑法学界的产生与发展历程,揭示我国风险刑法论者对风险刑法概念的曲解和滥用；第二节梳理了风险刑法理论的基本脉络,其论证逻辑为：首先指出传统刑法在风险社会中遭遇的种种困境,继而针对这些困境提出相应的变革主张,最后以现实立法证明风险刑法理论是顺应时代发展的理论选择;第三节叙述了风险刑法理论面临的质疑,主要包括两个方面：一方面是针对风险社会理论这一风险刑法的社会学依据进行的反驳,另一方面则是针对风险刑法理论自身所存在的反法治风险进行的批判；第四节为小结,在总结了风险刑法理论争议的焦点之后,指出在刑法应当如何应对风险社会的问题上,不仅风险刑法理论的支持者与反对者各执一词,甚至在风险刑法理论支持者和反对者各自的阵营内部也存在不同的主张。第二章为“探寻风险刑法的原貌”,共分为三节。第一节阐述了风险刑法的社会学依据——风险社会理论,在研究了“风险”概念的内涵和风险社会的生成逻辑的基础上,探讨我国是否已经进入风险社会的问题,认为应当认可风险社会已经成为研究中国问题的现实背景,但风险社会的概念在我国必须被重新解构和定义；第二节分析了从风险社会到风险刑法的理论跨越,否认了“风险”是风险社会理论和风险刑法理论的连接点,肯定了风险社会只能作为探讨风险刑法的现实语境；第三节为小结,进一步指出风险刑法理论并非是一种全新的理论体系,而是面对社会变迁刑法应当如何应对的传统问题。第三章为“风险刑法的现实依据：‘风险’与‘不安’”,共分为三节。第一节否认了风险刑法理论将“风险”作为刑法变革依据的科学性,风险社会并不意味着风险的现实增多或加剧,而是一个融合了客观性与建构性的概念,作为风险刑法理论的现实依据并不严谨,而刑法基于其本质特征也无法成为应对风险最有效的手段；第二节批判了风险刑法以民众的安全感作为保护法益的谬误,因为安全感是一种无法观测和量化的主观感受,达不到刑法的明确性要求,以安全感作为刑法所保护的法益不仅无法实现法益指导刑事立法的机能,还将导致民粹主义的刑事立法；第三节为小结,点明了刑法固然应当随着时代的发展而变迁,但刑法自身的品格不能泯灭。第四章为“风险刑法的价值取向：安全凌驾于自由”,共分为四节。第一节对风险刑法的犯罪观进行反思和批判。首先指出风险刑法犯罪观的典型学说“风险诱致说”并未脱离规范违反说的基本立场,且因为在语义上缺乏明确性而更加威胁公民的自由,其所推崇的敌人刑法也面临学界多种质疑和批判。其次叙明了风险刑法理论将法益概念引向终结的事实,强调法益内涵应当具有边界,防范风险与法益保护并不冲突；第二节分析了风险刑法的责任观,指出了“负责主义”和罪责功能化的不足,刑法应当坚守责任主义原则；第三节讨论了风险刑法的刑罚观,总结了风险刑法选择目的刑论而否定报应刑论的理由并予以反驳,强调报应刑论的重要价值在于为刑罚提供了限制原则,而风险刑法理论对积极的一般预防理论的滥用将会导致重刑主义之下的人权保障缺失；第四节为小结,总结了风险刑法理论在刑法教义学中所执的理论观点背后存在一个统一的价值取向,即安全凌驾于自由。但在我国刑事法治尚未实现的情形之下,自由价值应当获得更多的重视。第五章为“风险刑法的立法追求：犯罪圈的不断扩张”,共分为四节。第一节针对风险刑法扩张犯罪圈的主要手段——抽象危险犯展开探讨,认为抽象危险犯不能无限扩张刑法的处罚范围,应当允许对抽象危险犯中的“危险”进行反证,并通过对抽象危险犯的设定范围进行限定和依据但书的出罪理念对抽象危险犯进行出罪来限制抽象危险犯的可罚范围；第二节针对风险刑法所主张的立法模式的转变,即法定犯时代的到来,探讨了自然犯与法定犯的区分、风险刑法与法定犯的共生关联和法定犯扩张的隐患与限制问题；第三节分别以醉驾型危险驾驶罪、恐怖活动犯罪、环境犯罪这三类典型的风险刑法立法的实践效果揭示了风险刑法理论所主张的扩大刑法处罚范围并未在实践中取得预期的良好效果,反而证明了仅仅依靠刑法难以解决风险社会中出现的各种危害行为；第四节为小结,反思了以立法来证明理论合理性的逻辑,面对不断扩张的犯罪圈,应当停止犯罪化的刑事立法。第六章为“风险社会中传统刑法的坚守”,共分为三节。第一节讨论了风险社会中刑法的定位问题,由于我国风险管理的缺失主要在于功利导向的公共决策和风险预测监控机制的缺失,有效管理风险应当在改变行政观念,在行政法领域进行具体的风险防控制度设计,刑法只能作为保障行政法有效实施的最后手段法；第二节以毒驾入刑这一现实争议问题为视角,研究了风险社会中的刑事立法界限,认为刑法应当坚守刑法谦抑的基本立场,以行为具有社会危害性、入罪后能够通过公平且不歧视的执行来认定、入罪后能够实现刑罚的目的,没有其他社会控制手段可以代替刑罚这四个条件作为风险社会中出现的新型危害行为的入罪标准。依据该入罪标准,毒驾行为不应立即被纳入刑法规制的范围；第三节为小结,风险社会的到来天然地导致犯罪圈具有扩张的倾向,因此,刑法所面临的问题不应当是刑法是否可以或者是在多大范围上替代其他社会治理手段,而是犯罪圈的范围应当如何清晰界定才不至于侵犯公民自由的问题。
[Abstract]:In recent years, the theory of risk criminal law, guided by risk prevention, is popular in the criminal law circle of our country. The theory holds that the traditional theory of criminal responsibility criminal law has been hard to deal with the risk. It should be pushed forward to the criminal law protection limit, so as to reflect the reality of the risk society with security as the main value orientation. Demand. Around the value orientation of security overriding freedom, the risk criminal law advocates all aspects of the reform of the crime, responsibility and punishment in the traditional criminal theory, and the purpose of expanding the penalty scope and the strict criminal law through the addition of abstract dangerous offenders, in order to effectively prevent and control the risk. It has aroused the question and criticism of many scholars in the criminal law field. It is believed that the theory of risk criminal law is a theoretical trend of thought derived from the misinterpretation of the meaning of the risk society. It subverts the basic position of the modesty of the criminal law, neglects the fact that our country is at the primary stage of the construction of the law and boosts our country. In order to clarify the shortage of the theory of risk criminal law more systematically, this article combs and rethinks the series of theoretical changes and legislative ideas of the theory of risk criminal law, and on the basis of criticism, it combines the practical problems of the legislation of the risk punishment law and is under the background of the risk society. The boundary of criminal legislation in our country has been considered, and the criminalization standard of the new type of dangerous behavior in the risk society is put forward in order to restrain the scope of the criminal law expanding and avoid the infringement of the freedom and human rights of the citizens. The main content of this article is divided into six chapters: the first chapter is "the present situation of the research on the theory of the risk criminal law" The first section is divided into four sections. The first section reveals the origin of the risk criminal law, traces the history of the emergence and development of the theory of risk criminal law in Germany and Japan and the criminal law of China, reveals the misinterpretation and abuse of the concept of risk penal law in China, and the second section has combed the basic vein of the theory of risk criminal law. In the third section, the third section describes the question of the theory of risk criminal law, which mainly includes two aspects: on the one hand, it aims at the theory of risk society. The sociological basis of this risk criminal law is refutation, on the other hand, it is the criticism of the risk of the anti rule of law that exists in the theory of the risk criminal law. The fourth section is a summary. After summarizing the focus of the theory of the theory of the risk of the criminal law, it points out how the criminal law should deal with the problem of the risk society, not only the theory of the risk criminal law. The supporters and opponents of the second chapter also have different opinions within the respective camp of the proponents and opponents of the risk criminal law. The first section is divided into three sections. The first section expounds the sociological basis of the risk criminal law, the social theory of risk, and the concept of "risk". On the basis of the formation logic of the connotation and the risk society, this paper discusses whether our country has entered the risk society, and thinks that the risk society should be recognized as the realistic background of the study of China, but the concept of the risk society must be restructured and defined in our country; the second section analyses the theory of the criminal law from the risk society to the risk. It denies that "risk" is the connection point of the theory of risk society and the theory of risk criminal law. It affirms that the risk society can only be used as the realistic context of exploring the criminal law of risk. The third section is a summary and further points out that the theory of the risk criminal law is not a brand new theoretical system, but a transmission of the social vicissitude criminal law. The third chapter is "the realistic basis of the risk criminal law: 'risk' and 'uneasiness'". It is divided into three sections. The first section denies that the risk criminal theory takes "risk" as the scientific basis of the reform of the criminal law. The risk society does not mean that the reality of the risk is increasing or intensifying, but a concept of fusion of objectivity and constructivism. As the real basis of the theory of the risk criminal law is not strict, and the criminal law can not be the most effective means to deal with the risk based on its essential characteristics. The second section criticizes the risk penal law as the fallacy of protecting the legal interests of the people, because the sense of security is a subjective feeling that can not be observed and quantified and can not reach the clarity of the criminal law. It is required that a sense of security as the legal benefit protected by the criminal law not only can not realize the function of the legal interests to guide the criminal legislation, but also will lead to the criminal legislation of populism. The third section indicates that the criminal law should change with the development of the times, but the character of the criminal law can not be vanished. The fourth chapter is "the value orientation of the risk criminal law." It is divided into four sections. The first section rethinks and criticizes the crime view of the risk criminal law. First, it points out that the typical theory of risk criminal law crime "risk induced theory" is not divorced from the basic standpoint of the standard violation, and is more threatening the freedom of the citizens because of the lack of clarity in the semantics. The criminal law also faces many questions and criticisms in the academic circle. Secondly, it describes the fact that the theory of the risk criminal law leads to the end of the concept of legal interest. It emphasizes that the connotation of legal interest should have the boundary, the prevention of risk and the protection of legal interests do not conflict; the second section analyses the liability view of the risk criminal law, and points out the insufficiency of the functionalism of "responsible" and the crime, the criminal law We should stick to the principle of responsibility; the third section discusses the penalty view of the risk criminal law, summarizes the reasons for the choice of the purpose of the risk criminal law and negates the reasons for the theory of retribution penalty and refute, emphasizing that the important value of the theory of retribution penalty is that the principle of restriction is provided for the penalty, and the abuse of the positive general prevention theory by the theory of risk punishment will be abused. It leads to the lack of human rights protection under the doctrine of heavy punishment; the fourth section is a summary, and concludes that there is a unified value orientation behind the theory of the theory of risk criminal law in the doctrinal theory of criminal law, that is, security is overriding freedom. But under the situation that the criminal law has not been realized in our country, the free value should be paid more attention. Fifth The chapter is "the legislative pursuit of the risk criminal law: the continuous expansion of the criminal circle", which is divided into four sections. The first section discusses the main means of the crime circle of the expansion of the criminal law of the criminal law, the abstract dangerous crime, and thinks that the abstract dangerous criminals can not expand the scope of the penal law indefinitely, and should allow the "danger" in the abstract dangerous criminals to be reproved. Through the definition of the scope of the abstract dangerous crime and the crime of proviso to the abstract dangerous criminal to limit the penalty scope of the abstract dangerous offender; the second section aims at the transformation of the legislative pattern advocated by the criminal law, that is, the arrival of the time of the legal criminal, and discusses the distinction between the natural and the legal offenders, the criminal law and the criminal law. The co-occurrence of legal offenders and the hidden dangers and restrictions of the expansion of statutory offenders; the third sections, respectively, the practice effects of the three types of typical risk criminal legislation such as drunk driving type, terrorist crime and environmental crime, reveal that the scope of penal penal punishment advocated by the theory of risk criminal law does not achieve the expected good effect in practice. Fruit, on the contrary, proves that it is difficult to solve all kinds of harmful behavior in the risk society only by criminal law. The fourth section is a summary, reflecting the logic of proving the rationalization of the theory by legislation. In the face of the continuous expansion of the criminal circle, the criminal legislation should be stopped. The sixth chapter is "the persistence of the traditional criminal law in the risk society". The three section. The first section discusses the position of criminal law in the risk society. Because the lack of risk management in China lies mainly in the lack of utility oriented public decision-making and risk prediction and monitoring mechanism, the effective management risks should be changed in the administrative concept and the design of the specific risk prevention and control system in the field of administrative law, and the criminal law can only be used as a guarantee. The final means of the effective implementation of the administrative law; the second section, from the perspective of the real dispute, studies the boundary of the criminal legislation in the risk society, and considers that the criminal law should stick to the basic position of the criminal law, with the social harmfulness of the act, and can be identified by the enforcement of fair and non discrimination after the crime, and after the crime, the criminal law can be found. For the purpose of realizing the penalty, there is no other social control means to replace the four conditions of the penalty as a standard of incrimination of a new type of dangerous behavior in a risk society. According to the standard of admission, the behavior of toxic driving should not be immediately included in the scope of the criminal law regulation; the third section is a summary, and the arrival of the risk society will naturally lead to the crime circle. There is a tendency to expand, therefore, the problems facing the criminal law should not be whether the criminal law can or is in a large scope to replace the other means of social governance, but how the scope of the criminal circle should be clearly defined as not to infringe on civil liberties.

【学位授予单位】：东南大学
【学位级别】：博士
【学位授予年份】：2016
【分类号】：D924.1
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本文编号：1820004