风险社会背景下抽象危险犯的扩张研究

发布时间：2018-05-01 20:22

本文选题：风险社会理论 + 刑法变动　；参考：《山东大学》2017年硕士论文

【摘要】：纵观历史上刑法的一次次修改与补充,可以清晰看到危险犯立法在我国刑事立法中的成长与扩张,尤其是抽象危险犯的在立法上的扩张在刑事理论领域引发了不少争议,但不可否认的是,抽象危险犯在我国的成长发育有其深刻的社会背景和刑法理论依据。风险社会理论为刑法防控风险提供了理论依据。风险社会理论起初是一个有影响力的社会学理论,该理论中提出的全球化背景下的风险问题常后来被多个学科领域所学习和借鉴,当其被引入刑法领域后,似乎能够为中国社会和刑法理论的发展变动提供一种可信赖的理论工具,从而得到了广泛的认同。传统的社会安全体系崩塌,风险意识蔓延加剧,使得公共政策开始为公众重构制度性的安全保障,管理和控制风险成为国家的刚性公共政策需求和法律需要;为控制社会风险、维护社会安全和秩序,刑法自然而然成为了现代国家对风险进行防控的重要工具。风险社会背景下"安全刑法"兴起壮大。控制和预防风险成为刑法的重要目的,"安全"成为风险社会理论与我国刑事理论之间的一个隐藏的连接点。由此,"安全刑法"得以发育,并以其独特的影响力给传统刑法中不作为犯罪、持有型犯罪、抽象法益、抽象危险犯等一些原本独立于传统结果本位的、"孤立而零散"刑法理论找到了一个可以串联和汇集的方向,向注重保障人权和以法益侵害结果犯为核心的结果本位主义刑法提出了挑战,在敦促传统刑法进行反省和革新的同时,也出现了诸如"行为本位主义刑法"的新力量。我国危险犯立法扩张,具有充分的扩张理由。梳理个罪的发展线索可以轻易发现我国刑法在危险犯的增设上有着明显扩张的历史轨迹,尽管对于抽象危险犯的设立理论界存在诸多争议,但抽象危险犯理论作为一种重要的法益保护前期化手段与风险社会下的社会特征和我国刑法理论的变动发展暗暗呼应,风险社会的背景及刑法理论的激荡变动为抽象危险犯的扩张提供了一定的现实基础和理论依据。但抽象危险犯的扩张也引发了人们的忧虑,认为抽象危险犯的扩张造成了犯罪化膨胀、刑罚权过度发动,违反刑法谦抑性,侵犯个体自由等问题,所以必须对抽象危险犯的立法增设和司法适用中进行合理地限制。其中在立法方面,对于抽象危险行为犯罪化的谨慎选择、对抽象危险犯立法时强调前置评估程序是重要的规制手段,而在司法实践中坚持对满足构成要件的行为进行实质违法性评价以及允许行为人的反证也是被提倡的限制方法。
[Abstract]:Throughout the history of the revision and supplement of criminal law, we can clearly see the growth and expansion of dangerous crime legislation in our country's criminal legislation, especially the expansion of abstract dangerous crime in the criminal theory has caused a lot of controversy in the field of criminal theory. But it is undeniable that abstract dangerous crime has its profound social background and theoretical basis of criminal law in our country. The theory of risk society provides a theoretical basis for the prevention and control of risks in criminal law. At first, the theory of risk society is an influential sociological theory. The risk problem in the context of globalization is often studied and used for reference by many disciplines, when it is introduced into the field of criminal law. It seems that it can provide a reliable theoretical tool for the development and change of Chinese society and criminal law theory. The collapse of traditional social security system and the aggravation of risk consciousness make public policy begin to reconstruct institutional security for the public, and management and control of risk becomes the demand of rigid public policy and legal need of the country, in order to control social risk, To maintain social security and order, criminal law has naturally become an important tool to prevent and control risks in modern countries. Under the background of risk society, the Security Criminal Law rises and grows. Controlling and preventing risk has become an important purpose of criminal law, and "security" has become a hidden connection point between the theory of risk society and the theory of criminal law in our country. As a result, "Security Criminal Law" has developed, and with its unique influence to the traditional criminal law of omission crime, possession crime, abstract legal interests, Abstract dangerous offenders and other criminal theories, which were originally independent of the traditional result standard, "isolated and scattered" criminal law theory have found a direction that can be connected and assembled. It challenges the result-oriented criminal law, which focuses on the protection of human rights and the consequential offense of legal interests. While urging the traditional criminal law to reflect and innovate, a new force such as "Behavioral orientation Criminal Law" has emerged. Our country dangerous crime legislation expands, has the full expansion reason. Combing through the development clues of a crime can easily find that the criminal law of our country has an obvious expanding historical track in the addition of dangerous crimes, although there are many controversies about the establishment of abstract dangerous crimes. However, the theory of abstract dangerous crime, as an important means of legal interest protection and social characteristics under the risk society, echoes with the change and development of criminal law theory in our country. The background of risk society and the agitation change of criminal law theory provide certain realistic basis and theoretical basis for the expansion of abstract dangerous crime. However, the expansion of abstract dangerous crime has also aroused people's concern. It is believed that the expansion of abstract dangerous crime has resulted in the expansion of crime, excessive mobilization of penalty power, violation of the restraint of criminal law, and violation of individual freedom, and so on. Therefore, the legislation of abstract dangerous crime must be set up and the judicial application should be restricted reasonably. In the aspect of legislation, the careful choice of criminalizing abstract dangerous behavior and the emphasis on pre-evaluation procedure are important means of regulation. In judicial practice, it is also advocated to insist on the evaluation of the substantive illegality of the behavior satisfying the constitutive elements and to allow the actor to testify against it.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924

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