风险刑法理论下抽象危险犯的合理规制

伴随风险社会理论的产生,在刑法学界提出了风险刑法理论,以预防风险为目的的处罚的早期化是显著特征。而在风险刑法理论背景下,又出现了扩大抽象危险犯的主张。尽管表面上看二者似乎有一种理论上的支撑关系,但实际上各自有其独立的社会基础,只是这种独立的社会基础表现出了高度的契合性。因此,作为最严厉的制裁手段,刑法应当以谦抑为精神,其保障法的地位不能动摇。当然,不能否认社会危险的增多,但又不能以此为借口盲目扩大抽象危险犯的处罚,应该持理性而冷静的态度,从现实出发,从刑法保障人的利益的视角考虑,尽量借鉴该理论与国情符合的方面来解决我国的实际问题,适时地、合理地肯定抽象危险犯在我国刑法中的独特的价值和功能,并进行合理规制。

Reasonable Regulation of Abstract Dangerous Crime Under the Risk Criminal Law Theory

In criminal law field, the theory of risk criminal law is presented with the risk social theory, which is significantly characterized by punishment in the early stage with the intention of preventing risk. However, under the theoretical background of risk criminal law , there is the proposition of expansion of abstractly dangerous crime offender. Although it seems that both law has a relationship of theoretical support, in fact, each has its own independent social basis, which shows a high degree of fitness. Therefore, as the most severe sanction, criminal law should regard modesty as its spirit so that its status of security law can not be shaken. At the same time, we can not deny the increase of social risk, but we cannot blindly expand the punishment of abstract dangerous criminal and should have a rational and calm attitude. From the practical point of view, taking the perspective of the protection of people''s interests in criminal law into consideration, we try to solve practical problems in our country by coordinating national conditions with the theory. Furthermore, we will timely and appropriately affirm the unique value and function of abstract dangerous criminals in criminals law and reasonably regulate them.