A New Probe Into The Theory Of The Risk Criminal Law

The modern society has entered into a new age so-called‘‘risk society'', in which technology risk and system risk compose the main structure of risk. Modern technology brings people convenient life as while as new risks that even experts fail to predict and control, and the market economy system not only makes the economy development vigorously but also enhances the risks of crime. People has never screamed for protecting their security like today, so a theory insists that the criminal law, in order to protect the legal interest better, should punish the crimes more earlier than before and change its aim from revenge into prevention. That is the theory of the risk criminal law. In this article, this theory is defined as a new system which uses the criminal penalty ahead of harmful consequences to realize the positive general prevention.The theory of the risk criminal law has been criticized by the subsidiary ism which strongly oppugns its base and effect. However, should this theory be totally denied? What is the fairly reason for the theory to exist? What is the proper field to apply? How to avoid the symbolization criminal law? Is there any possibility for the Chinese criminal law to adapt this theory? These topics are thoroughly discussed in this paper.This dissertation consists of six parts, except for th“eIntroduction”and“Conclusions”, the main part is composed by four chapters:“Introduction”states a compromised research paradigm. In this part, the article corrects long bias on Eclecticism and argues a compromised paradigm which includes a compromised means of both deduce and induce, a compromised foundation consisting of both criminal law and criminal policy, and a compromised base for explanation of both Ontologismus and Normativelism. The theory of risk criminal law and ruaral criminal law are the two poles of this paradigm and for which it is not a correct attitude to exclude the risk criminal law.Chapter one introduces the theory of the risk society which reveals the background of the theory of risk criminal law. After introducing the content, defects and advantages of the theory of risk society, this part argues that some new theories of criminal law should be put forward under the risk society, and these are the theory of safety criminal law and the theory of the risk criminal law. And then, this part explains the reason to abandon the former and to choose the later, and also generally states the definition, status and principles of the theory of the risk criminal law.Chapter two particularly states the just reasons of the theory of the risk criminal law to exist. After hotly discussing whether the role of criminal law is to protect the legal interest or to obey the norm, this paper considers that the theory of violating legal interest, although having some defects, is still the essence of crime. In the perspectives of criminal law and criminal policy, this paper considers that the just reasons of the theory are the theory of conduct without value and positive general prevention.Chapter three talks about the concept‘‘danger''which is the key word of the theory of the risk criminal law. This part points out that the concept of danger has different meanings due to its different types. In criminal law, danger offence is the main carrier of criminal danger. The danger offence, which can be used as a broad sense or a narrow sense according to different classification, has its basic types which include the abstract danger offence and the concrete danger offence. The differences between these two types can be concluded from the essence and the appearance of danger. The fact that the attempt is absolutely belonged to the danger offence as a broad sense can exactly explain the reason to punish the attempt, while as to the question whether the attempt is the abstract danger offence or the concrete danger offence, it cannot be generally spoken without concrete context.Chapter four discusses the issue of protecting legal interests ahead of harmful consequences. Danger offence, attempt, and preparatory offence are the traditional types of this trend, while abstract danger offence and negligent danger offence are the modern ones. Having introduced the legislations and practices of punishing environment crime, gene crime, information crime, traffic crime and harassment crime, this article affirms the justice of this trend. In addition, this part gives its opinions on how to determine the range of the theory and prevent the symbolization criminal law.“Conclusions”firstly sums up the main idea of this dissertation, and then discusses whether the theory of the risk criminal law can be applied by the Chinese criminal law. It analyses the elements of blocking the aim, the defects of the current Chinese criminal law, the necessity, possibility and reality of the reform, and finally suggests a gradual path.