Limitation Of Preventive Criminal Law In China

Since Beck put forward the risk society theory,this theory has been recognized by many scholars all over the world,and the word "risk" has become an important concept to understand modern society.In the process of the transformation from the traditional society to the risk society,how to use criminal law to deal with the ubiquitous risk in society has become the focus of criminal law scholars.In the face of the social risks,almost all countries will expand the criminal law as a response,China is no exception.In the 20 years since the promulgation of the criminal law in 1997,China has promulgated ten amendments to the criminal law.Through the analysis of the contents of the ten amendments to the criminal law,it can be found that the criminal law of our country also presents an expanding trend.These criminal laws,which are based on the insecurity of risks in modern society and take risk prevention and safety maintenance as the main goal and expansion of criminal law as the main manifestation,are called preventive criminal law.It is undeniable that preventive criminal law plays a certain role in risk prevention,but we must see that the expansion of preventive criminal law will also bring problems.The expansion of preventive criminal law will inevitably lead to the compression of civil rights space.How to protect the rights and freedom of citizens under the premise of ensuring the full play of the role of preventive criminal law is exactly the problem to be studied in this paper.There are four parts in this paper.The first part is the overview of preventive criminal law.The concept of preventive criminal law has not been clearly expressed in the academic circle,and a few scholars have made explanations on such concepts as "preventive legislation",and "concept of preventive criminal law".On the basis of the above,through the analysis of the main characteristics of preventive criminal law to further understand the concept of preventive criminal law.The preventive criminal law has two main characteristics: the early intervention of criminal law and the protection of supra-personal legal interests.The two main characteristics reflect the difference between the legislative view and the criminal law view of the preventive criminal law and those of the traditional criminal law.From the traditional criminal law to the preventive criminal law,the negative legislative view of criminal law is changed into the positive legislative view of criminal law,and the negative general prevention is changed into the positive general prevention.The characteristics and theories different from the traditional criminal law constitute the basic features of the preventive criminal law.The second part is the present situation of preventive criminal law in China.The Amendment IX to the Criminal law of People's Republic of China and the Amendment VIII to the Criminal law of People's Republic of China reflect the trend of preventive criminal law.The addition of dangerous crime,the practice of preparatory behavior and the principal offense of helping behavior are the characteristics of the early intervention of criminal law.The areas of terrorism crime,people's livelihood and cyber crime are the most profound areas of the trend of preventive criminal law.In order to ensure the national security and social development,and also to fill the vacancy of the illegal treatment mechanism,it is inevitable that criminal law of our country turns to preventive criminal law.The third part,the hidden worries of the expansion of the preventive criminal law.Preventive criminal law is a useful attempt to face the current risks,but the problems of preventive criminal law itself cannot be ignored.If the expansion of preventive criminal law is allowed to continue,its disadvantages will far outweigh itsadvantages once it exceeds the necessary limit.The expansion of preventive criminal law will lead to excessive instrumentalism of criminal law and impact on the principle of criminal law.Criminal law has the attribute of tool,but criminal law can not be used as a pure tool.Once criminal law is used as a pure tool,it will bring two consequences.One is the excessive criminalization of social governance.In order to achieve the remarkable effect of social governance,other means of social governance should be put aside,and criminal law should be taken as the main tool of social governance,which will eventually lead to the consequences of criminal law's overall intervention in society.Second,is that symbolic legislation has become the main legislative orientation of criminal law.Criminal law will become a political tool for legislators to appease the people.Criminal law will no longer has its own value,but become an accessory of politics.The expansion of preventive criminal law will also have an impact on the principles of criminal law.The preventive criminal law makes the freedom guarantee function of the criminal law give way to the risk control function,which leads to the limitation function of the modesty principle of the criminal law on the punishment of the criminal law gradually weakened,the modesty principle may be empty.In addition,in the face of the urgent situation of protecting supra-personal legal interests,the original criminal law imputation principle has changed,subjective fault,causal relationship is no longer necessary factors,all to prevent the need for the principle of culpability has the function of limiting the scope of criminal punishment disappeared.The fourth part is the limitation of preventive criminal law.The limitation of China's preventive criminal law needs to be grasped from the two aspects of legislation and judicature.At the legislative level,we should adhere to the principle of protecting legal interests,the principle of proportionality,and the mitigation of punishment.At the judicial level,on the one hand,it is necessary to change the "incriminating thought",make full use of decriminalization provisions and decriminalize the behaviors with significant minor harm.On the other hand,limit judicial interpretation.the tendency of "lawmaking" of judicial interpretation needs to be corrected.The subject of judicial interpretation should abide by the jurisdiction ofjudicial interpretation,clarify the specific content of judicial interpretation,strengthen supervision and ensure the scientific nature of judicial interpretation.