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随着“风险社会”理论的引进,刑法学领域亦逐步形成了与传统的“自由刑法”理论相对的“风险刑法”理论,该理论倡导刑法保护法益抽象化、普遍化以及早期化。而事实上,刑法保护早期化容易导致刑法过度介入社会生活,进而扩大刑事法律的处罚范围,那么,刑法对社会风险的因应之策何在?若引入“风险刑法”又该如何平衡其与传统刑法的关系?这些问题都值得深入的思考与衡量。
With the introduction of the theory of “risk society”, the field of criminal jurisprudence has gradually formed the “risk criminal law” theory that is opposite to the traditional “free criminal law” theory, which advocates the abstraction and generalization of legal interest in criminal law protection And early. In fact, the early protection of criminal law easily lead to excessive involvement of criminal law in social life, and then expand the scope of the penalties of criminal law, then, criminal law on the social risk response what? If the introduction of “risk criminal law” and how to balance its The relationship between the traditional criminal law? These issues deserve deep consideration and measurement.