The Examination On The Criticism Of The Theory Of Risk Criminal Law

Risikostrafrecht,the new branch of criminal law theory,also known as the risk criminal law,was developed as the response of the expanding penalty power of the country in the risk society.The theory of risikostrafrecht,due to its radical proposition—to breach the legal interest harming principle,is controversial.Since theory of risikostrafrecht is directly derived from the risk social theory,many scholars,while defending or criticizing the idea,have not occupied a comprehensive and systematic understanding of the concept,which,to a certain extent,leads to the misunderstanding of the core requirements of the theory.Those misunderstandings to risk society and risikostrafrecht make the argument became complicated without any sense.Thus,essence of the theory,which is theoretically insightful,is concealed in the misunderstanding and wrongly criticism.Through the retrospection of risk society theory,this paper restores the original idea of risikostrafrecht,resolves the false conflict between risk criminal law and traditional criminal law,and,to better guide our legislative and judicial practice,deepens our understanding of the real crisis of criminal law in the current risk society.The first chapter sketches out the idea of risikostrafrecht.The concept rests on three legs,the concept of risk society,the “risk” feature in risk society and the basic claim of risk criminal law theory.By reevaluating the theory of risk society,this paper restores some basic ideas of risk criminal law theory.For instance,the theory of risk society is a combination of reflexive modernization,accelerated individualization,and multi-dimensional globalization.Neglecting either dimension will inevitably lead to an incomplete interpretation of the theory.The perception of “risk”,in Beck's mind,is exclusive in the field of sociology,produced through the process of industrialization in specific fields,which is different from the concept of “danger” in the criminal law.The core demands of the risk criminal law include the decentralization of the concept of legal benefits,the advancement of criminal law punishment,and the introduction of the concept of risk management.The second chapter reveals the misunderstanding in the criticism of risk criminal law in virtue of combing the process of introducing risk society theory into China and deriving the theory of risk criminal law.The misunderstandings are as follows: first,reject the necessity of the theory of risk criminal law;second,misinterpret the the concept of "risk";last but not the least,deny the authenticity of risk society.The key arguments are as listed below.Without introducing risk criminal law theory,traditional criminal law cannot justify the legitimacy of tendency of criminal law penalty advancement legislation.Hence,it is a blind of the traditional criminal law that initiating risk criminal law theory is not necessary.In the research and dissemination of risk criminal law theory in China,there is a tendency to over-expand or to excessively restrict the concept of risk.Those two kinds of interpretation are not in line with the intention of risk criminal law.Moreover,while developing and criticizing specific arguments,researchers are inclined to ignore the legitimacy of risk criminal law and disavow the existence of risk society.Given the existence of the three misunderstandings,the issue of risk criminal law has stagnated.Notwithstanding the opinion confrontation seems fierce,the essence of risk criminal law theory remains untouched.Targeting the theoretical misunderstanding of risk criminal law,the third chapter attempts to rectify the critical misunderstanding of risk criminal law,on account of the revivification of the risk society theory,given the incompatibility of the legal interest harming principle,and under the consideration of the era requirements of the transformation of the criminal law.First,reaffirm the authenticity of the risk society.The real “risk” in the risk society is not only reflected in the increase in its quantity and intensity,but also in its role in exerting influence and leading public opinion.Second,reiterate the incompatibility of the legal interest harming principle in the risk society.The principle's increasingly vague connotation is eliminating the function of its own critical legislation.Last,reassert the inevitable transformation of criminal law.Currently,social tasks are shifting and the philosophical position guiding criminal law is altering,accordingly,the criminal law must initiate a reform.The fourth chapter addresses the practical solution of the rectification of the misunderstanding,divided into two dimensions,the legislative and judicial dimension.On the legislative level,this paper advocates the practical utility of criminal law based on risk criminal law,opposes “symbolic legislation”.Moreover,the legislation should establish the complementarity of the risk management principles,to strictly control the scope of the application.At the judicial level,this paper appeals to introduce the risk criminal law to the risk management principle,endeavoring to resolve numerous controversies with "dangerous criminals" as the core.