| With the increasing prevalence of the risk criminal law theory, it causes a widespread reflection and questioning. The birth and development of a theory is truly inseparable from itself reasonable demonstration and more importantly, a process of justification criticism is necessary. Wherefore this article is based on the position of philosophy of law and selects legal interest, culpability and punishment, what usually consisted in the legal doctrine system’s three major parts, as the areas of discussion, and reviews these parts above individually, whereas additional analysis of the situation of risk legislation in Germany and Japan is depicted if necessary.Firstly, according to the introduction and preface(sectionⅠof the article), serials of macro-critical points are described in the perspective of the ontology position, such as the inherent logical contradiction and extrinsic theoretical orientation of the risk criminal law system, and fundamental inconsistent with the liberal rule of law theory, etc. The article argues that the current "risk" development of criminal law theory cannot solve the real problem, and it does not really deal with the formation of policy for discussants’ narrowly limiting in terms of internal discipline studying on criminal law and simply focusing on it’s own "risk" evolutionary. Instead, we must coordinate among various departments through the legal system, and understand their clear division side,by which we can find it’s scientific solutions.Secondly, through redefining the concept and studying historical division of legal interests(sectionⅡof the article), combining with briefly revealing the relations between theory of criminal law(doctrinal system) and the(criminal) policy, the concept of legal interests is increasingly hollowing out and spiritual developing. Meanwhile, the article is trying to point out the effects of the tool of teleology which has exerted in the development of criminal law theory. In summary, the article is questioned with the current trend of "functional" legal interest and it’s one-sided approach to strengthen social control theory, in which we must keep vigilant with the potential threatens it may have to the violation of human rights.Thirdly, under the humanism paradigm, the article successively views deep reasons of socialization in culpability and the functionalization in criminal punishment(section III&IV of the article), and argues that it is the influence of extreme patternalism and positivism systematic theory and normative theory etc. and utilitarian considerations additionally that makes the risk criminal law theory is increasingly tiling to authoritarian and cybernetics, which may hide the latent threat to the the state under the liberal rule of law. It has concluded that sticking on the traditional commandment-“culpability only concerns subjectively and personally”-in comparison and option with the correlate theories. What’s more, the so-called "social(functional) culpability" concept presently is not in line with our theoretical development and practical improvement of the criminal law theory. Meanwhile, its intrinsic implying of "reductionism" with the simplistic thinking cannot be adapted by the sophisticated criminal law theory. Also, it brings the punishment theory what "self-purpose" is given to suspicious circumstances. Reviewing the current situation of the risk legislation in some countries such as Germany and Japan etc., offers us a provided and critic reference object when we are about trying to seek the solutions to regulate the “risk offenders”, and points out specifically that any excessive advocating of the functional, policy-considering of punishment theory in the context of current criminal law theory of severe penalty is inadvisable and irrational.Finally, based on the analysis of the all chapters above, some basic conclusions can be concluded(Part V of the article), on the other hand, the article also points out the probable(including the real existence) deficiencies of the whole passage. |
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