Social Sciences in China (Chinese Edition)

No.7, 2019

 

Regulation of Social Risk through Criminal Law and the Its Model Reform

(Abstract)

 

Jiang Tao

 

The increase in social risks and their complex pattern in the transition period have led to an expansion of criminalization in the development of criminal law. Criminal law legislation manifests an obvious intent to prevent and control social risks. The root of this functional change from response to prevention in Chinese criminal law lies in risk criminal law; this leads not only to the appearance of the “four trends” of development in the constitution of crimes, but also to the “five new” developmental features in legal dogmatics. Given these trends and features, criminal law theory faces a major proposition: how can we abandon the simplistic logic of justifying risk criminal law on the pretext of risk society, bring the scientific protection of collective legal interests into risk criminal law, analyze and demonstrate the situational changes and the causes of such changes brought about by this type of law, and rationally consider the rule of law paradox which states that risk criminal law “while responding to society’s need for security, brings with it criminal law risk.” In the theoretical orientation and choice of method of risk criminal law, one should attach importance to criminalization based on legal protection + criminal law restraint + examination of consequences; advocate innovation in the dualistic criminal model; and make a restrictive interpretation of collective legal interests, so as to reduce the risks brought about by criminal law itself and create a new and vital model.