The Study Of The Criminal Law Countermeasure Under The Perspective Of The Risk Society

With the improvement of industrial civilization,"society with risks" arises because of the ubiquitous risks. The Criminal Law advocates mostly on the protection of the safety and the preservation of the order in the society when dealing with the problems of risks. The theory of "Risky Criminal Law (Hereinafter referred as RCL)" illustrates that The Criminal Law should step up to the modern cutting edge from the traditional guard position, should change its direction from being retribution-oriented to being prevention-oriented, should protect the legal interests more precisely in the form of punishment preposition. In this article, the theory of RCL is such a kind of legal theoretic system that it mainly makes criminal regulation to the anti-law behaviors and punishes those of potential damage offence, the preparatory crime and the crime of illegal possession in order to protect the legal interest of the whole society.The theory of RCL arouses the debate from both positive and negative perspectives. In my opinion, the negative viewpoints plays a positive role in develop the theory. When we face the society with risks, how could the theory of Criminal Law make a demarcation? How will the RCL keep its legitimate evidence? How would the RCL form its frame when facing the modest proposal of the Criminal Law? How can the traditional theory of Criminal Law reasonably absorb the elements of risks? The answers will be found in this article.The article is separated into five parts. Apart from the introduction and the conclusion, there are three chapters in the body part.In the introduction, we introduce the crime of wine driving in The Amendment Criminal Law (8th) and explain the danger of wine driving in order to propose the theory of RCL.In the first chapter, the theory of RCL in sociology is illustrated briefly as the theoretical background in terms of its contributions and limitations; then the social condition in China is generalized into social risks, economic risks and environmental risks; at last, the theory of RCL is proposed by explaining various viewpoints in the west and at home as well as my own opinions.In the second chapter, we thoroughly explain the value and applicability of the theory of RCL. The value mainly reflects the variability----positive general prevention theory and strict but mild punish structure. We must limit ourselves in the range of the Constitution and keep a humble spirit to use this theory properly.In the third chapter, we discussed the specific assumption on how to develop the Criminal Law in the risky society from the general and specific perspective respectively. Generally speaking, we analyze the theory from the principles of guilt, the protection of interests and objective responsibility theory. Specifically, the theory could be developed from the potential damage offence, the preparatory crime and the crime of illegal possession.Risky society is globally characterized. We should actively integrate into the system of risk discourse of rights and obligations, identify the risks, and select Criminal Law countermeasures in order to supply the most powerful support in the limited space of the criminal code to the effective realization of risk regulation.