Comments On The Theory Of Risk Criminal Law

Ulrich Beck, the famous socialist from German, presented the theory of risk society in 1986, which influenced many other subjects. In the field of criminal law, scholars show different opinions towards the risk criminal law theory from the beginning of its being put forward. In some countries, like Germany and Japan, the criminal law theory and legislation has undergone a series of changes. After being introduced into China, domestic scholars show high enthusiasm toward it and eager to express their attitudes. As research continues, more and more scholars realize that there are many misunderstandings and assumptions in domestic papers. On one hand, the theoretical foundation of risk criminal law has not been fully demonstrated. On the other hand, the complicated condition of our country and original criminal law system restrict its function. Besides, the risk criminal law has its own risk, which may break the primary principle of criminal law, expand the scope of punishment and violate human rights and freedom.If we can’t make clear the essence of risk criminal law theory, the disputes will be meaningless. China is facing a social transformation and involved into the worldwide "risk society" inevitably. The modern criminal law need to deal with the new types of law interests, lack of responsibility subject, lag of penalty and other issues. So, should we accept the risk criminal law completely or abandon it, or seek a compromise path? This is what this article tries to answer. The research methods of comparative research and normative study, as well as the combinative means of empirical analysis have been adopted, which result in achievements with theoretical and practical significance to some extent.The focus of controversy includes the following aspects:whether the risk criminal law violates the primary principle of the modern criminal law, what is the theoretical basis of the risk criminal law and how to coordinate the relationship between the risk criminal law and modern criminal law. Scholars in favor of risk criminal law hold the opinion that risk criminal law can make up the deficiency of modern criminal law in face of risk society and agree with the trend of the legislation practice. The opposite view is that the risk criminal law is quite different with the modern criminal law in value concept, function orientation, criminal liability and other aspects, which brings forward challenge to basic principle of the modern criminal law.The risk criminal law insists that the criminal law, in order to protect the legal interest better, should punish the crimes earlier than before and change its aim from revenge into prevention and use the penalty ahead of harmful consequences to realize the positive general prevention. On the view of crime, the risk criminal law owes the essence of crime to the violation of norms. It no longer preset the specific content of legal interest. Criminal law will be launched in advance to regulate risk rather than harmful consequences, which greatly impact the status of "legal interest". The abstraction and blurring of the "legal interest" will vague the boundaries of legal interests, causing the extending of crime circle and weaken its function of restricting the penalty power. On the view of responsibility, to guard against "organized irresponsibility", the risk criminal law simplifies the judge of causality relationship, advocate the theory of objective imputation. It deviates from the principle of responsibility and will readily tend to the extreme of "principle of responsibility" which restricts civil freedom of action and social development. On the view of penalty, the risk criminal law initiates positive general prevention, aims to culture public awareness of norms and allegiance to laws by penalty. This purpose of penalty neglects the nature of penalty, treating human as a tool, which may cause the expansion of punishment and heavier sentence. As to the system of legal sanctions, due to the larger right of administrative punishment, the criminal law should maintain its modesty.The purpose of criticism is to make the theory better. The risk criminal law pays attention to the frontier of social development, puts forward many creative theories, reflects the deficiency of modern criminal law in face of risk society and provide a contrast to the introspection of the modern criminal law. This is where the major value of the risk criminal law is. Because of the stability of the modern criminal law and the imperfection of the risk criminal law, the later cannot replace the former at the present stage. On the idea of law’s value, its pursuit does not match the current situation of our country. To be more specific, it can only be used in a certain areas of risk with the principle of necessity and "minimum injury"Theory needs to keep pace with the times and the modern criminal law should be tolerant of the risk of criminal law. Risk criminal law should be an exception to the modern criminal law, which maintains the stability of the connotation of criminal law as principle, and play a complementary role in a certain range. The modern criminal law itself also should make self-adjustment according to the social changes. Firstly, the basic principles of criminal law, like statutory crime and penalty, personal responsibility and legal interest protection are hard and fast and should be maintained all the time. Secondly, there are some useful and innovative ideas inside the risk criminal law which can be learned by modern criminal law to make a beneficial attempt. Finally, improve and perfect corresponding supporting measures, such as learning from foreign experience to establish a multivariate legislation mode; guiding by the criminal policy, applying a policy of tempering justice with mercy and keeping modest and initiative in the judicial determination to ensure fairness in single case.