Collision Of Order And Freedom

Modern criminal law should respond positively to the face of the arrival of therisk society. That is， in the context of risk society reposition scientific andtechnological progress，the development of civilization and criminal legislationcoordination interaction between the criminal law embodies the punishment ofcrimes， to restore fairness and justice，give full play to its purpose of maintainingsocial security and order. Examine the process of reflection，the most important thingis to clarify the basic thesis of the particular social context of criminal law criminallaw value problem. Order and freedom are fundamental values of criminal law，withthe generation of the Penal Code，with the development of the criminal law anddevelopment. Condensed the peoples desire for order and freedom in the creation andimplementation of the criminal law process. In the context of risk society，the criminallaw face value balance and choose both. How reasonable the coordinate value of thecontradictions of this pair，to establish risk social context of the criminal law the basicvalue orientation，it will become a historic task in the process of modernization ofcontemporary criminal law. Examine the definition of risk and the risk of socialconnotation start efforts to clarify the value of risk society Penal Code Penal value oftraditional social relations，to find the balance point of the fundamental values of criminal law in the context of risk society scientific orientation of the order value andthe value of freedom，in order to achieve the coordination between the two. Inaddition to the introduction and conclusion，is divided into five chapters，about10million words.The first chapter is “Risk Society Theory Outlined”，divided into two. The firstsection demonstrates the meaning of risk. Reveal the origin of the concept of risk，evolution，as well as to clarify the risk with dangerous，similar to the concept of therelationship of the crisis，damage，uncertainties and other proposed risk refers todamage to some main uncertainty. By examining the basic features and basic types ofmodern risk to modern risk and traditional risk difference between open and revealthe modern risk the possible consequences to survive the crisis，the crisis of socialrationality crisis and the human spirit. The second section demonstrates the risk ofsocial theory. Examine the origin of the risk of social theory，pointing out that the risksociety risks generated by human practice pose serious threats to the survival anddevelopment of humanity as a whole a specific stage of social development in thecontext of modernization and globalization. The root cause of the risk society is thatmodernization and globalization，and the analysis of the risk society and social risksassociated with and distinction. The analysis in this section of the limitations of therisk of social theory and inspiration，pointed out that the global and universality of theone sided emphasis on the risks of the risk society theory，ignoring the differences inthe risk of non-Western societies，with obvious limitations. Also pointed out that therisk of social theory to understanding contemporary Chinese Social Development toprovide a new research paradigm，contribute to the formation of an internationalperspective of the risk society，helps to reflect on the development of Chinese socialideas，contribute to the building of our risk management theory.The second chapter is “the Response of the Criminal Law Theory of RiskSociety”，divided into two. The first section demonstrates the risk of criminal lawtheory of social development. Analysis of the difficulties and challenges of thecriminal law in the risk society. The limitations of the scope of legal interests，after the disposal of the lag，the Principles of Responsibility narrowness. Pointed out that therestructuring and development of the theory of criminal law must become a generaltrend，the concept of criminal law，the function and purpose of repositioning. Thesecond section describes the risk of criminal law theory. Pointed out that the risk ofcriminal law in the context of risk society，lead to the risk of criminal behaviorthrough regulation，punishment Dangerous Criminals way earlier in，and thus toachieve a positive penalty general purpose of preventing the formation of a new thecriminal justice system. Risk criminal law should make a clean break with the enemycriminal law strictly. By revealing the applicable principles of the risk of criminallaw，the basic structure，risks inherent risks and value of the Penal Code. Positioningon the issue of the risk of criminal law，pointed out that the traditional criminal lawand risk criminal coexistence，in order to make up for the shortcomings and loopholesin the traditional criminal law functions. The risk society，the concept of the PenalCode，is to the traditional criminal law as the core to the risk of criminal law tosupplement the traditional criminal law connotations.The third chapter is “the value of the Criminal Law of the risk society”，dividedinto two. The first section demonstrated the value of the theoretical definition. Pointedout that the scope of the criminal law value is a legal value，legal value belongs to thecategory of value. Therefore，the study and research of the value of the Penal beginlegal value. Reveal the value of the value and legal meaning of the Penal Code valueis defined as the relationship between the intrinsic elements of the criminal law itselfand the needs of the functional structure colleagues. Value in Criminal constituteanalyzed the theoretical point of view of the pre-classical school of the core values offreedom for the criminal law，the empirical school in order for the core values of thePenal Code as well as post classical school of the core values of justice for thecriminal law. Justice is the value of the proof of the object，the value is to provejustice of the tool，justice implementation dependent on the realization of freedom andorder，criminal law and justice and criminal law value generic concept and lower theconcept of the relationship，therefore the criminal law the basic value only includefreedom and order. The second section demonstrates the value proposition of the Criminal Law of the risk society. Pointed out that the value of the Criminal Law of therisk society role should be to reflect on the proper role of the criminal law as a meansof social control. Criminal law as the last bulwark of maintaining social order andstability，order value and social protection function destined to become dominant. Atthe same time need to re-found freedom by breaking the idea of control since theindustrial society to remove the barrier between freedom and order，to seek the unityof freedom and order，in order to establish the liberal values of the risk society.The forth chapter is “the Collision of Order and Freedom”，divided into three.The first section demonstrates the order of the Criminal Law of the risk of socialvalue and the value of freedom. Analysis of the meaning of the order， thecharacteristics，classification，elements，pointed out that the order value can meet themain object in the interactive relationship with the main needs of the social behaviorof stability，continuity，consistency and predictability and other required properties.Proposed in the context of risk society，the order value should be arranged in thesequence of fundamental values of criminal law. By analyzing the meaning offreedom，classification，it is proposed that the value of freedom refers to the attributesof the object in the interactive relationship with the main needs of illegal interventionneeded to meet the body against state power. The value of freedom in the fundamentalvalue of the sequence of the risk society，criminal law，and its position has beenweakened. The second section demonstrated the conflict order value and the value offreedom. Reveal the performance of the conflict and the causes of conflict in orderand freedom，that freedom is in the context of risk society，risk society is an urgentneed for social order. When the society as a whole is facing an urgent and explosivemodern risk，freedom must give way to order. The third section demonstrates thecoordination of the order value and the value of freedom. The proposed order is acriminal law of value and the direct value of the risk society，and freedom is thepurpose of the criminal law of the risk of social value and the ultimate value. Risksociety，the criminal law is not in order to meet the public sense of security threats orviolations of the freedom of the citizens，can not be indifferent to risk because of therisk of control would undermine the protection of civil liberties. The risk of social context of criminal law should be the order of the unity of the fundamental value andthe freedom of ultimate value.The fifth chapter is“the Reflection of the Basic Value of the Risk SocietyCriminal Law”，divided into three. The first section demonstrates the front of the legalinterests protected. Pointed out that in order to protect the social order，legal intereststo protect the front of outstanding performance for the abstract of Perilous expansion.The second section demonstrates the responsibility doctrine of evolution. Pointed outthat the proposed strict liability the responsibility principle objective Imputabledevelopment，the expansion of corporate responsibility，has the tendency value stanceto the utilitarian value of the position of the offset. This offset is essentiallycompromise the responsibility of the doctrine of the social and public interests，so asto achieve the basic goal of maintaining social order and safety. The third sectiondemonstrates the positive general prevention proposed. Pointed out that in theatmosphere of the risk society，the pursuit of order，positive general prevention theoryhas become the guiding principle of the criminal policy irreplaceable. Meanwhile，thepositive general prevention theory is based on the effective concept of penalties theuse of a series of restrictive rules. Penalty based on the deprivation of personalfreedom for the contents of the Penal Code sanctions，and thus its limit means lesspersonal freedom deprivation. Therefore，a positive general prevention to protectindividual freedom as the ultimate value of the risk of social and legal.