Research On The Establishment Of Positive Criminal Legislation And Its Reasonable Response

In China's legislative practice,criminal law legislation shows a very active trend.From the perspective of the change of criminal circle,it is the basic idea of the improvement of criminal law in our country to take the protection of public security,the maintenance of social order as the problem orientation,and the active play of the criminal law prevention function as the basic value guidance.This more active legislative thinking is called the active criminal law legislative view.It is a positive legislative way to adapt to the development of the times to include some preparatory acts and helping acts into the scope of criminal punishment,turn to the further regulation of dangerous crimes,adjust the standards of individual crimes,and gradually break through the inherent thinking of traditional criminal legislation.However,the severity of criminal sanctions makes the criminal law become the "bottom line" norm in the common sense,and emphasizes that the criminal law should maintain a relatively conservative attitude towards the regulation of behavior,which means that while affirming the rationality of the existence of the current positive legislative concept,it must be restrained by the prudent concept such as the modesty of criminal law.Based on the concept and characteristics of positive legislation,this paper discusses the necessity of the reflection and construction of positive legislation in China's criminal legislation,and the relationship between positive legislation and criminal modesty,and then discusses how to balance the active legislation activities and the requirements of criminal modesty in the future criminal legislation,so as to improve the basis of criminal access and the scientific nature of criminal legislation.The paper is divided into four parts.The first part of the article summarizes the basic concept and characteristics of the positive criminal legislation concept,taking the criminal law revision of some countries of written law system as an example,discusses the development and performance of the positive legislation concept in the legislation outside the country,and through the analysis of some important contents of several criminal law amendments in China,directly shows the change trend of the criminal legislation concept in recent years.The preventive function of criminal law has been strengthened,and the criminal circle has expanded to a certain extent,under the positive view of criminal law legislation,the expansion of the scope of criminal law adjustment is not very broad,let alone the pursuit of an unlimited increase in the number.The basis for the application of the positive concept of legislation is always around the legislative needs of the real society,which certainly includes the tendency of mitigation of punishment and decriminalization.In the second part expounds the rationality and necessity of establishing the positive concept of criminal legislation by comparing the characteristics of the traditional concept of legislation.On the one hand,the fermentation of positive legislative ideas shows the intensification of the conflict between the lag of criminal law and the changeful society under the rapid progress of society,on the other hand,it reflects the current situation of strengthening the preventive function of criminal law caused by the expansion of the demand of criminal law in the era.Under the background of the current network information age,with the proposal and development of the concept of risk society,the increase of social uncontrollable factors,the trend of the internationalization of criminal behavior,with the widespread concern of the theory of risk society,the traditional concept of legislation to a large extent shows that it is unable to quickly respond to the social phenomenon that criminal means are gradually concealed and criminal behavior is gradually complicated under the new technology.The third part discusses the internal coordination between positive criminal legislation and criminal modesty.Starting from the concept of criminal law modesty,this paper explores the practical significance that criminal law modesty can be valued by criminal legislation for a long time.The severity of criminal sanction measures and the legislative thinking of reasonable restriction on public power require that criminal law must maintain rationality,not only strengthen its sanction effect,but also break through the reasonable boundary between legal departments.However,this is not the same as that the criminal law must always be positioned as passive and restrictive in the division of the scope of legal regulation,and it does not mean that the change of the scope of criminal law regulation under the positive view of criminal law legislation must violate the original intention of criminal law modesty.Under the positive view of criminal legislation,we should carefully examine the essence of criminal modesty,make them coordinate with each other,and jointly promote the further development of criminal legislation.The fourth part puts forward a reasonable response to the positive concept of criminal law legislation.In the process of adapting to the times and social development,criminal law needs to go out of the negative setting of the traditional criminal law view,but it can't ignore the boundary problem of criminal law.Therefore,on the basis of analyzing the phenomenon of strengthening the preventive role of criminal law and expanding the scope of adjustment under the positive criminal law legislation view,the positive effect of promoting the development of criminal legislation in the process of establishing the positive criminal law legislation view is affirmed,At the same time,it points out that there is a certain degree of radical evolution in the development of criminal law in order to pursue the preventive role of criminal law.On the basis of criminal law's modesty,it analyzes the current criminal standards for dangerous behaviors,and puts forward the positive penalty for the development of criminal law from the perspective of the possible expansion of criminal law in the reform of criminal punishment system,such as the advance of criminal defense line,the setting of underpaid clauses,the expansion of adjustment scope The legislative view of law makes reasonable restrictions,in order to promote the future criminal legislation more scientific.