Research On The Pre-trend Of Criminal Protection

Since the late20th Century, in order to deal with kinds of risks in new forms, taking the prior anti and free strategy for the potential danger (risk) becomes the mainstream of laws and regulations in all the countries. As the last adjustment means of social conflicts and disputes over interests, the penalty changes its protection focus on the classical freedom of preventing national penalty power improper intervenes into the modern freedom protection of public safety, and its emphasis shifts from the damaged or the after-accident to gefahrenvorsorge or risikovorsorge. The significant transformation of the activism function criminal law view makes the legislative types of early penalty active, and its specific performance is the pre-trend of the criminal law protection, whose content is "pre criminal punishment" and "pre legal interest protection".Pre criminal punishment means that through the abstract dangerous crime and other criminal types, the previous phase crime tendency will be punishable in advance. Its real reason is that legislators implement the risk management, leading to the change of the "dangerous" level to legal interests. Pre protection of laws refers to the crime tendency of the common legal interests including the social system and the system function protection as a prerequisite for personal interests protecting. The real reason is that legislators implement risk management, leading to the "dangerous" qualitative change for legal interests. However, excessive pre criminal law protection can not be passed according to the theory of legal interests, the theory of the responsibility for an offence, and the theory of the crime prevention. Meanwhile, this may not only cause principles of the criminal law in the modern nation of laws to collapse, but also lead to producing the disadvantages of excessive intervention on the freedom of the people. Because of attribution difficulties, effectiveness problems will appear. Ultimately, this will be only the symbolic criminal law with deceptive effect.Although the pre legislative trend of the criminal policies for the implementation of risk management and distribution is inevitable, this risk thinking in the legislative and judicial fields must still meet the legal interest protection principles as the wealth of the criminal law in a nation of laws, the principle of responsibility, and the principle of proportionality. Therefore, in the theory of interpretation, we must make boundaries and proofs for the pre criminal law protection clear. The legislators in the pre-set legislation must fulfill the proof responsibility of the legislation legitimacy according to the boundaries and proofs, and the judiciaries in pre legislation judicial application also must limit and shrink the excessive expansion of the penalty right according to this. That is to say, on the one hand, the legal interest concept shall play the legislation critical role, the concept and the content of universal legal interests are created specifically as possible as, and boundaries of pre legal interest protection shall be limited on the base of being worthy of protection and violation possibility. On the other hand, crime structural violation related constraints shall play the role, the behavior control or risk prevention considerations are eliminated as possible as, but from the view after the crime, the danger level is estimated accurately.