On The Limitation Of Dangerous Criminals In The Perspective Of Risk Society

The famous risk society theory was first put forward by Ulrich Beck,a German scholar in his book titled Risk Society in the 1980 s.It has been widely discussed since the introduction of this theory into our country.Some scholars believe China has become a risk society,while the others holds that the risk society theory should not be applied mechanically,regarding to the difference of social basis between the developed western countries and China.But on the whole,there are many similarities,in the matter of risk characteristics,between western countires and China.Risikostrafrecht theory which brings a great shock to the traditional criminal law theory becomes popular in current China.Risikostrafrecht theory is to put the criminal defense line to the front,so as to realize the protection of legal interest.It meets the demand of social security of the public at the expense of freedom to act and so on.And the definition of legal interest in risikostrafrecht theory becomes fuzzificated and expanded.Special prevention turns to be general prevention,result-oriented in criminal law disapproval turns to behaviour-oriented while the potential damage offense is the main form in the legislature.Opinions are different as to whether to apply the risikostrafrecht theory in our country currently.The author believes that we need to take dialectical view in this matter,neither to blindly ignore nor to blindly worship.Risk society doesn't mean the Revolutionary subversion of the traditional criminal law which should be still in the dominance position.At the same time,the risikostrafrecht theory should applied prudently,giving necessary supplement and correction for the traditional criminal law theory.The society changes fast since the reform and opening up,the crinimal law is modified accordingly.We can see the development trend of the risikostrafrecht theory through the legislative development of potential damage offence.The main expressions are the expansion from intentional potential damage offense to the negligent potential damage offense,the expansion of crime scope,body,legal interest and the expansion from material potential damage offense to abstracte potential damage offense.We can find that the potential damage offense has expanded in criminal law in China.The author believes that it is necessary to limit the potential damage offense as the whole society depends on too much and exaggertates the limitation function of potential damage offense,which can be disscussed from following three aspects,first of all,theoretically,differences exist between the western countries and China,as to the basis of risk society and the level of development.Therefore,the risikostrafrecht theory can not be applied blindly.The nature of risk is different from the general risk behaviour.And it is the demand of the trend of lightening of punishment as well as the modest and restrained principle.Secondly,empirically,the author tries to prove the infeasibility and unnecessarity through the contrastive analysis of data.Thirdly,legislatively,there exists imperfections in the current potential damage offense,mainly,guilt unbalance,guilt standard.As to the system design of limitation of potential damage offense,it is need to differentiate,in macro level,whether to limit or not,and to clarify,in microcosmic level,the exact definition of risk state,helping the judicial determination,avoiding the scope of appication of criminal law,which can be analyzed through the duality of risk definition,the criteria of the time and subject.A bitter controversy about whether the potential damage offense finish or not exists.To make clear the question will contribute to the application of crime preparation,crime discontinuation and attempted offense of potential damage offense.The author agrees that potential damage offence does contain unaccomplished states.The main reason lies in the formation of dangerous state is a process from quantitative change to qualitative change.there is a certain time interval exists between the commence of dangerous behaviour and the formation of dangerous state.After behaviour starts,risk state has not yet formed,this is unaccomplished states.Controversy also exists as to whether to regard negligent dangerous act as a crime.The author believes that negligent dangerous act should be limited on the basis that part negligent dangerous act should be regarded as a crime,maily from three aspects,namely,the limitation of risk,scope and penalty of negligent dangerous act.