In recent years, with the rise of the "risk society" theory, our country criminal law educational world some discussions on "criminal law of risk society", the main points can be summarized as follows: China has entered a "risk society"; the "risk society" is coming, the criminal law should expand the scope of punishment (such as increasing the negligent dangerous crimes such as illegal); according to the results of no value is not, of no value but behavior (standard); can't abide by the responsibility principle, we should adopt the strict liability.^[1]The author intends to do some analysis on the above views, aims to promote further thinking on these issues.

A "risk society", the criminal legislation according to the problems

The formulation and other laws, criminal law must have sufficient according to. "According to" is in many aspects, such as the constitution, policy, according to according to the facts. The author think, can not be "risk society" as the real social background according to the legislation of criminal law. Because the "risk society" is not the real social status, but a product of culture or governance.

When the German scholar Williams to the "risk society" theory, the founder of German scholar Ulrich Beck put forward the concept of "risk society" "this is not a bit old stuff? Since the initial period of socialization since, 'risk' is not always in the changing society?"^[2]With such questions, Ulrich Beck had to admit: "this is a can easily make this concept creator embarrassing question".^[3]Though Ulrich Beck thought unique flower big strength, with a large space to understand the "risk society" concept is particularly important, but unique so-called only Ulrich Beck personal value judgment.^[4]As Ulrich Beck said: "we must see, the risk is not specific; it is a kind of 'ideas', is a social definition, only when people believe it, it will be so true and effective."^[5]

Undeniably, a "risk society" theory of significance is to let people pay attention to the risk of man-made (risk of so-called internal risk, or science and technology, social system). However, in ancient times, when the ship is sailing on the river or the sea, the people at the same time, aware of the risks in the sailing ship, and has adopted various measures to avoid risks (not think shipbuilding and sailing without content of science and technology). Similarly, in the invention of the automobile era, people are also aware of the danger lurking in the using process of automobile,^[6]And has taken various measures to reduce the traffic accident. In twentieth Century 50 time, people began to realize that the hidden dangers of nuclear energy in the use process, launched a debate on how to use nuclear energy safely. In short, in any era, people engaged in related activities are generally aware of the risks of the activities, including the risk of the activity itself. The human is in face of various risks by making the appropriate choices and weigh the advantages and disadvantages of progress. No attention to risks, not engaged in related activities of the people, but the people engaged in the humanities and social science research. The latter can not because of its previous unaware of the risks, he said that the former is not aware of the risks.

Compared with the real social status, the "risk society" theory of the so-called man-made risk is greatly exaggerated, risk non-human (external risk) is significantly reduced. For example, the nuclear leakage or man-made explosion accident casualties and no more than the earthquake, tsunami caused casualties. A United Nations report "the Chernobyl Forum" in 2005 September published shows, as of 2005, "direct" of the number of nuclear radiation killed nearly 50 people. The report also is expected to, about 4000 was at the scene of the accident to perform fire and cleanup task workers "may" died of radiation related cancer, leukemia, otherwise life death for the same reasons 5000 people in Russia and Belarus." China's State Council Information Office under the State Council earthquake relief headquarters authorized to release the situation is: as of September 25, 2008 12, the Wenchuan earthquake has caused 69227 people were killed, 374643 injured, 17923 missing.^[8]The death toll in Indonesia 2004 tsunami more. In 2011 March, Japan to bring a large number of casualties is the real reason for the tsunami earthquake and its cause, instead of nuclear radiation (radiation even people later worry is caused by an earthquake). So, what are the reasons that people think the so-called man-made risk increases? I think mainly the following reasons, as follows:

First, the human society has experienced numerous flood, storm, earthquake, plague and other disasters, people had knowledge of the external danger from nature, and now to further realize the harm of man-made risks, but this does not mean that the external risk has disappeared. In other words, this just means that people know more comprehensive, risk are worried about the broader, rather than "marks replaced risk dominance of external risks have been made".^[9]That kind of external risk is not important, but the real risk from the human point of view, does not tally with the facts. As mentioned above, the number of casualties of any earthquake caused casualties than any man-made risk causes much more.

Because of the risk of people talking about today such as genetically modified food, nuclear power plant, synthetic organic pesticides, disaster risk does not exist, in the past, therefore, come very naturally to think the development of science and technology leads to an increased risk of. However, some foreign scholars have proved that: "in the contemporary society, the risk has not actually increased, had not increased, but merely perceived risk, was increased and intensified the consciousness".^[10]In other words, "from the perspective of interpretation, contemporary society does not increase the risk, but our risk awareness and cognition degree greatly increases the risk, but the fact that the rapid development of science and technology brought about side effects and negative effects caused by the may have reduced. Increased risk of people's perception, is due to the interaction, social culture and individual psychology to construct the common results".^[11]In the author's opinion, whether it is "the risk awareness increased" or "risk awareness increased," doesn't mean people engaged in related activities in the pre industrial society has not perceived risk, but simply that awareness and perception of Humanities and social sciences on the risk of not more. In this sense, the increased risk of claims, is in fact the humanities and social sciences of lagging performance.

Second, the actual risk consequences directly perceived social public and not due to events, but from the psychological, social, cultural, institutional, media publicity and many other factors. For example, the public think the risk increases, is "because nowadays many very influential figure in their great influence to the world that, in real risks to human survival is increased and intensified",^[12]But the essence of "risk did not increase".^[13]And, rendering the degree different media, the public have different perceptions. However, the risk of a "media and many people (such as air) the degree of concern, more than a year to see the consequences of the accumulation of risk (such as traffic accident). The daily hazard sources (such as traffic accident) news value than the sudden disaster, unusual risks more attractive than normal risk. Famine such crisis will make people concern, but the process leading to this dangerous but not what the media value".^[14]Guiding role of media has led to more sensitive to man-made risk society. In addition, because of the public's perception depends on many factors, therefore, different national people's attitude to risk is not exactly the same. For example, "related to the risk of nuclear power is USA to know, but the French citizens are not clear, they are not too concerned about these risks".^[15]Because of the French nuclear power generating capacity of 75%, the French "seen on nuclear power greater demand, and greater benefits associated with nuclear power. The design, construction, operation and management of nuclear power plant scientists and industry and government officials have a greater degree of trust. More likely to believe in decision-making authority should give the experts and government authorities, rather than the layman".^[16]Again, "in the SARS panic, Americans think, for themselves and others, terrorism is far better than SARS much larger threat. While Canadians think, for themselves and others, SARS is much larger than the threat of terrorism. However, during the period of this study, Canada has not experienced terrorism, but there have been a number of cases of SARS. Correspondingly, the Americans suffered a major terrorist attack, but there have been no cases of SARS. Look, people seem to think that the best wizard happened often will happen, and it is not irrational".^[17]It also shows that, people's understanding of the size of the risk is not determined and man-made risk (terrorist attacks) or risk of non-human (SARS).

Third, the survival of people cannot do without the nature, without the occurrence of natural disasters, people often think of nature is friendly in nature. Especially when the industrial society. The destruction of natural environment, people liked more of nature. In addition, even if the occurrence of natural disasters, people can not be expressed outrage, the nature and the natural disaster risk, and can only accept, tolerance. However, it is difficult to accept, tolerance for risk and damage. An artificial risk always exaggerated by the media, it can either satisfy people's anger, hatred, or can remind people of prevention of man-made risks. "Research shows, people overestimate pesticide cancer risk, but underestimate the carcinogenic risk of nature. People believe, natural means safety, so that they would rather choose natural water instead of treated water, even if the two are of the same chemical composition."^[18]This is the people close to nature and human behavior caused by anger.

Fourth, people ignore the probability in the perception of human risk. "Since a significant in the event of influence or not and the estimation of probability, people will be highly inaccurate. However, sometimes, people on the probability to does not make any evaluation, especially in the intense emotion of. Influence of thinking and behavior is the worst case itself, but not the possibility it will happen -- even though the probability should have considerable influence."^[19]When a nuclear power plant leaks accident, people will think that all nuclear plants will leak accident. However, there is a drought or floods this year, people will not think of drought or floods occur again next year.

Fifth, "people are more willing to tolerate the familiar risk and the risk is not unfamiliar, even if they are equal in statistics. For example, driving related risk does not cause much attention, even if only in the American, each year tens of thousands of people died in traffic accidents. A similar accident is regarded as life. In contrast, many people are very concerned about the view is risk is new, such as related to genetically modified food, recently invented chemicals, such as terrorism risk."^[20]Thus, the same is a man-made risks (such as smoking, sun bath), as long as be accustomed to, people will not care; and for those rare, rare risk, but people to heart. This shows that human risk is the risk of people is not familiar, but not implies the existence of a large number of this risk.

Sixth, people feel the modern society more and more risk but also because of their increasing vulnerability. People with a palm leaf fan for the whole summer, people now work, living in the air conditioning also feel swelter. Human intelligence is in progress, but the physical in the fall; science and technology progress, but the ability to resist risks are on the decline of individual. So, people are always in a panic. In this sense, the modern society is a "risk society", might as well say that modern society is social anxiety.

Seventh, the reason why people think that science and technology have brought many risks, because it ignores the science and technology to reduce the risk of the role. "There are a lot of reasons that we pay more attention to the condition of increased risk, and not pay attention to those risk reduction condition. In today's world of industrialized areas, hunger is no longer a serious threat; because the medical technology has improved, many incurable in the past also not terrible. Shipping and mining is no longer as dangerous, although in terms of risk reduction and a lot of work to do. Some risks increased, and some lower risk. In this case, we can calculate the amount at risk? Health risk, there is a reasonable calculation method, namely life expectancy. Using this method, then the rich regions of the world, the amount of risk reduction."^[21]The deadly virus epidemic in modern society and not only, if the SARS occurs in a few decades ago, the death toll is astronomical, but medical technology makes the death toll is greatly reduced.

In short, the "risk society" is not the real social status. Because of this, "the most sensible in the author's opinion, risk is the product of culture or governance. First, the risk is a way to understand and deal with things, itself is not the real thing. For example, although pregnancy is still the same with the previous experience of the state, but in many medical practice, has conceived from similar disease state, into a state of risk burden...... Second, the risk is not the true state of things, but the thoughts of a kind of value judgment the way things and things. That something is a risk, mean that the thing judged be harmful state be mitigated or avoided".^[22]

If so, the "risk society" as a true state, requires that criminal law reacts to the true state of so-called questions. The purpose of criminal law is to protect legal interests. The occurrence of some fact against the law in the social life, is often a crime according to the provisions of the criminal law. In the production, sales and shoddy products behavior is quite common, the criminal law provisions, increase production and selling fake or substandard products is appropriate. However, "risk society", "lies in the risk of modern social science and technology, social system, this is difficult to evaluate as illegal".^[23]It can be said that modern society is a "risk society", but can not say that the modern society is an illegal society. Therefore, can not be "risk society" itself as a criminal law must respond to real social background.

Two, the "risk society" in the scope of criminal punishment

The criminal law in the discussion of the "risk society" many scholars basically tend to enlarge the scope of punishment, which suggested that pre criminal defense line. For example, someone pointed out that: "in the risk society, to focus on security criminal law in risk behavior by manufacturer, and the risk of criminal prohibitions to reduce and avoid the risk, so as to ensure the safety of life. Therefore, the criminal law norms embodied in the security legislation will be criminal defense line push set, from the type of crime, criminal law should be the focus of safety, dangerous crime mainly...... In the face of risk in the risk society community life security threats, the criminal law must in this risk is possible before to make a reasonable response, as long as the behavior itself with a certain risk, the criminal law should ban".^[24]

The author thinks, this kind of viewpoint is worth discussing. Because the focus of criminal law in any society are in risk behavior by manufacturer and the real damage, and may not pay attention to the risk or the animal nature manufacturing and real harm. No one discusses how to use the criminal code prohibits flood, tsunami, hurricane or earthquake or SARS. Besides, if the behavior itself with a certain risk of criminal law should be banned, then society is impossible. Driving a car, the nuclear power plant construction, the development and use of various aircraft have a certain risk, but any country's criminal law does not prohibit such behavior. Human beings must weigh the advantages and disadvantages in the risk of. The tradeoff is, a lot of allowed danger in the society, this is an indisputable fact that.

Indeed, in many countries, the scope of criminal penalties are more and more wide. For example, the Japanese criminal law since twentieth Century 80's at the end of the main performance for the crime, added many new types of crime; a single criminal law, administrative crime types are difficult to count the. We know, crime and criminal law protection of early are closely related, and criminal law protection of early performance is, the criminal law of many countries to increase the attempted crime, dangerous crime, preparatory crime penalties, and gradually become the norm of the exception. The author think, many countries to expand the scope of criminal penalties and "risk society" may not necessarily linked.

Japanese scholars have pointed out, the social background of early stage of crime and criminal law protection mainly in the following points: (1) the thinking and behavior of individualism, liberalism soak, lead to dissimilar values widely allowed, resulting in informal social control weakened, behavior regulation relaxation, the inevitable outcome the tendency of penalty by the supplement to maintain social order. The weak "security or the protection of the public through the media requirements" now more direct, intense, and promptly to the legislature, the national criminal law protection on public as a public service content. (2) a major crime, crime is on the increase, worsening security situation of national feeling, inevitable requirement of the legislature to amend the criminal law, improve the legal punishment. In addition, with complex, scientific, highly technological society life, personally, the society is just like a huge black box, control may not subjectivity. The life of people mainly rely on the technical means of fragile. At the same time, the potential dangers of individual behaviors are also increasing rapidly, people do not know what would happen disaster moment. The resulting early, wide generalization of criminal punishment, the need for timely revision of criminal law in new types of crime. (3) in today's society there are many basic viewpoint of value is different from the general public, cult crime organization, political group, in order to protect the interests of the social public life, must as soon as possible for the organization of criminal regulation. Therefore, in recent years in Japan to criminal legislation is one of the themes of based on the existence and activities of organized criminal group of crime and punishment. (4) in twentieth Century 90 years later, the field of criminal substantive law formed the international standards, requirements to improve Japan's domestic legislation. The formulation and day 'some international treaties with the government, prompting the Japanese legislature to amend the criminal law and the enactment of criminal law.^[25]

Needs to be pointed out is, all of the above is just the Japanese criminal law and criminal law protection of the social background of "early", does not mean that the criminal law protection of legitimate early. In other words, when people because the A and the implementation of B behavior, does not mean that B acts as. For example, the criminal law is not only a good man's Great Charter, is criminal's Great Charter; not only to the protection of law, but also to the protection of human rights. Therefore, in order to advance the protection is only "security or the protection of the public requirements" or to get public recognition is not enough. The guarantee of human rights, is not possible by democratic decision. If we say that as long as the public identity can impose a penalty, then there is no guarantee of human rights. Also, increased Japan's so-called vicious crime, only the media rendering results, and not a fact.^[26]As for the public fears about modern risk, nor by the criminal law can be eliminated. Fear is an emotion, is an independent individual feeling, with obvious subjectivity. "A person's imagination will greatly increase the type and intensity of fear in the human society...... We know or understand more, more worry and concern will be our. If we don't know so much, we also are less likely to feel anxiety or fear...... If we imagine less, we will feel more secure...... Human metaphysical terror, anywhere in the world could not be eased."^[27]Therefore, it is impossible to eliminate the fear of criminal law. And, "to be sure, public panic, even if it is wrong to form, itself is a kind of dangerous, perhaps to the mass' chain reaction 'form, cause additional damage. A wise way to deal with risk, efforts to reduce public panic, even if it is groundless".^[28]However, the criminal law can't be reduced public panic means.

Many of the "risk society" of criminal law scholars have advocated an abstract dangerous crime. For example, someone pointed out: produce risk social soil breeds another type of dangerous crime, namely the abstract dangerous crime. Abstract danger is a kind of legal risk, it is common experience of legal basis and the dangerous people, has the potential hazards. Therefore, we need not the behavior itself whether to have the possibility of serious harm or practical judgment, based only on the behavior of the form can be sure of its existence the abstract dangerous. As long as the person carrying knives in public places, although did not use, can also be considered the implementation of the acts of endangering public security".^[29]Also pointed out: "the legislative mode of risk society is the crime legislation pattern is from the actual damage offense to the concrete dangerous offense to the abstract dangerous crime era leap. At the risk of the system of criminal law, the abstract dangerous crime becomes the main stage, to assume the task of investigating the risk of criminal drama 'starring'...... The legislative model of abstract potential damage offense has a unique control function, can effectively respond to the criminal law value demand risk society."^[30]The author thinks, afore-mentioned viewpoints exist many questions.

First, the product of abstract potential damage offense is not a "risk society". For example, in nineteenth Century the "German penal code", "the French penal code" provisions are the abstract dangerous crime, enacted in 1907, "Japan penal code" also stipulates that a lot of the abstract dangerous crime. In addition, even if the expanding scope of punishment in criminal law, but the increase in crime also there is no lack of actual damage offense, such as 8 of our criminal law amendment increased crime is the actual damage offense. Therefore, the so-called legislative mode "are from the real harm to the concrete dangerous offense to the abstract dangerous crime era leap" is not consistent with the facts.

Second, on the one hand that the abstract danger is the legal basis for the general experience of people at the risk, on the other hand, think only according to the behavior of the form can be sure the abstract danger saying stultify oneself. In specific cases, the existence of risk behavior is not abstract not to judge, but do not need to make specific judgments, but still need to make general judgments. Concrete potential damage offense and distinguish the abstract dangerous crime is the level of abstraction of the facts to the standard: the dangers of the dangerous crimes, is "in the administration of justice" specific circumstances in order to act according to the confirmation of time, with the possibility of infringement results; the abstract dangerous crime of dangerous, is "in the administration of justice" in general the act itself is based on or in a general social life experiences as a possibility, that behavior is against the results of the. Therefore, no matter is the concrete dangerous offense risk or the abstract dangerous crime of dangerous, is the real danger, need to identify and Study on the administration of justice, just as the abstract degree according to the fact that different: definition of dangerous concrete dangerous offense in the abstract level, as the judgment basis facts low; and the definition of dangerous Abstract dangerous offense when the degree of abstraction, the basis for judging the facts of high. For example, fire behavior is the concrete dangerous crime, according to the specific situation of behavior at the time, that the object combustion behavior with public danger, to the establishment of arson. Theft of firearms, ammunition, explosives act is the abstract dangerous crime, according to the experience of general social life, identify theft of firearms and ammunition, explosives behavior with public danger, then set up stealing guns, ammunition, explosives offences.

Third, speak from a certain meaning, is the abstract dangerous crime is to protect legal interests moved forward, but this advancement must have sufficient according to. The reason is very simple: if the protection of the interests of the law blindly forward, then the distance violation results occur far activities are prohibited by law, citizens have no freedom of action. We're obviously not because parents neglect to educate their children and may cause children to kill, the neglect of education stipulated as crime. China's criminal law does not stipulate the carrying knives in public places act constitutes a crime.^[31]Therefore, even in the "risk society", does not mean to be away from the dangerous behavior of real harm far are defined as criminal. Only the risk behaviors that occur very close from the actual damage and higher probability of actual harm, in order to implement the crime.

Fourth, in any one country's criminal law, the actual damage offense is always the most. Whether in the criminal legislation, or in the theory of criminal law, the abstract dangerous crime is not the protagonist. The reason why people say that study the dangerous crime from the Criminal Law Hermeneutics became beloved stepson,^[32]Because people's previous research on the abstract dangerous crime is not enough.

Fifth, not simply that the provisions of the abstract dangerous crime is to protect the legal interests of the early. Because the abstract danger is not "specific risk" actually means the abstract danger is the possibility of potential damage, and this make it difficult to understand. In fact, in some places, the abstract danger refers to the risk of harmful especially important, urgent. For example, "Japan penal code" 108th article: "burning down now for human habitation or existing buildings, people, train, tram, ships or mine, the death penalty, no period or more than 5 years of servitude" provisions of article first; 109th: "set fire to the non for human habitation and now no one inside buildings, ships or mine, department for more than 2 years of fixed-term servitude" provisions of section first; 110th: "set fire to other than those prescribed in the preceding article two, resulting in public risk, 1 to 10 years servitude". Obviously, the former two specifies the abstract dangerous crime, after a rule is the concrete dangerous crime. The provisions of the preceding two legal punishment is heavier than a prescribed punishment, because of the dangers of the provisions of the preceding article two of the casualties caused by the large behavior. In addition, the provisions of article 108th of statutory sentence is important to the provisions of article 109th of statutory punishment, apparently because of the risk of casualties caused by the particularly important, urgent. The relevant provisions of the criminal law also illustrates this point. For example, in 1997 the "PRC Criminal Law" (hereinafter referred to as the "criminal law") 141st of the production, sales of fake drugs act as the abstract dangerous crime, 142nd of the production, sales of substandard drugs act as concrete dangerous offense, apparently because the risk of life, the body of the former than the latter; another example, 1997 "criminal law" article 144th the production, selling poisonous and harmful food, act as the abstract dangerous crime, 143rd food behavior will produce, sales do not meet safety standards for the concrete dangerous crime, but also because the former has the danger of life, the body is larger than the latter. Moreover, "criminal law" provisions in 1997 127th theft, snatch firearms, ammunition, explosives act as the abstract dangerous crime, theft, robbery and toxic, radioactive, infectious disease pathogens or other substances, the act as concrete dangerous offense. This is not dangerous and harmful distance can explain the. Not only that, on some occasions, the abstract dangerous crime actually is almost equal to the actual damage offense. For example, insult, libel behavior belongs to the abstract dangerous crime,^[33]But an insult, libel infringe on others reputation caused by almost equivalent to the actual damage offense. Just because the real harm can't specific measurement, criminal law only to its provisions for the abstract dangerous crime. Therefore, thinks that the abstract dangerous crime is against the interests of law to protect, is in fact the abstract dangerous crime of misunderstanding.

Sixth, on the one hand that "risk society" not equal to the risk, on the other hand, with China's entry into the "risk society" on the grounds that the addition of the abstract dangerous crime is not appropriate. The reason is very simple, if the risk and risk are two different concepts, then it will not be because entered "risk society" and adding the dangerous crime, can only say that since entering the "risk society" so the need for additional risk prisoners. However, if any risk of human are defined as criminal, so people can only wait for death. Moreover, according to the prevailing view, compared with the traditional risk, the risk is a neutral concept. It not only brings uncertainty and risk, also can produce good effect, is the source of economic activity and many innovative.^[34]If so, can not be directly obtained must add the dangerous crime conclusions from the "risk society".

Many of the "risk society" criminal law scholars also advocated a dangerous criminal negligence. For example, one person said: "with the wide use of cutting-edge technology in the relevant equipment, production, transportation, medical treatment, although the economic efficiency has been greatly improved, but the risk of a surge in the. Those engaged in dangerous source and the relevant personnel, if the violation of safety regulations or procedures, lack of management, will be negligent, will risk the lives of others, health or major public and private property in serious...... The provisions of public nuisance crime in current criminal law in our country are not as dangerous to design, which deviates from the law shall be punished severely polluted crime. At present, should be in some serious harm public security crime and environmental crime provisions, the provisions of the involuntary dangerous crime, such as the establishment of the risk of fire, explosion, the crime of negligence crime of major liability accident crime control risk, so as to establish an external criminal law and the mechanism of induction, the negligence is aware of the danger and hazards of misconduct, aware of severe denial of risk behaviors of the national criminal law evaluation, training and serious working attitude and style of work, strengthening the duty of the individual, to avoid or reduce the risk or harm may be caused by".^[35]

The author does not agree with the negligent dangerous crimes. A simple truth is, if adding the involuntary dangerous crime, then it will inevitably lead to the emergence of civil action consequences atrophy, thereby limiting and even deprived citizens freedom of action. Indeed, the "risk society" will enable citizens to fear, and that fear will hamper the citizen's freedom of action, but a dangerous criminal negligence will give citizens caused another fear, that citizens are worried that they will make some risk in the implementation of any behavior, so dare not act freedom, by intangible restriction. And, in accordance with the "risk society" theory, "the source of risk is not based on ignorance of reckless behavior, but a rational judgment, analysis, based on the rules, inference, comparison of difference, cognitive ability, it is not the natural lack of control, but is expected to control the nature can be perfect".^[36]If so, then it means that the rational regulation, based on the judgment, analysis, inference, comparison of difference, such as cognitive behavioral, must also be subject to criminal law control. In addition, a dangerous criminal negligence is not conducive to the development of the society. The general provisions of foreign criminal law of negligence business heavier punishment in criminal law of our country, and the negligent act business but provides lower statutory penalty, judicial interpretation of the provisions are high conviction standard negligence business, investigate its reason, this is decided by China's national conditions. 20 years ago, the river Rentian professor pointed out: "at present, the ongoing national modernization requirements, the cadres and staff develop the courage to practice and bold and innovative spirit, rapidly improve the level of science and technology and business management skills. In this practice, innovation, there will be some mistakes, constitute a crime. If the emphasis on this kind of crime punishment, is not conducive to mobilizing the enthusiasm of the workers, cadres, affect the construction smoothly".^[37]

In a word, the "risk society criminal law scholars" tend to be criminal law as a risk prevention measures, i.e. to use criminal law to minimize risk or no risk. "However, society is not only consider the minimization of risk. If people feel the harm is rational and can contribute to other goals, they are willing to endure the harm. At the same time, if they feel the risk is imposed on them or violated other opinions and value them, they may not accept the slightest harm possibility."^[38]As a response to the criminal law needs to consider this dimension.

Even in the "risk society", we should not be excessive emphasis on preventive effect of punishment. Many risk or danger, take other measures to prevent than pure law prohibits more effective may. For example, compared with the criminal law on the prevention of traffic accidents, traffic equipment, traffic tools to improve the performance of the role played by the greater. Similarly, reduce the danger of nuclear power plants, the most fundamental measure is to promote the development of nuclear technology and perfect, rather than relying on severe punishment.

We should also remember that, "all risk prevention measures are almost always lead to other risk".^[39]Not to mention the negative consequences of significant penalty as a precautionary measure, even if the security measures nature of the preventive measures can also cause other risks. In the following American "Megan's law" as an example to prove it. In 1994 July, a 7 year old girl Megan USA New Jersey was living in her house across the street was paroled prisoner raped child molestation. Megan's parents had indignation of lobbying state and federal officials, and tougher laws to prevent similar tragedies. They point out, if they know the residents lived with convictions, and take appropriate preventive measures, so that Megan could survive. They called for the enactment of a law, to ensure that when a child molestation and rape criminal record on parole from prison to a community, local law enforcement officials and residents will receive relevant information. So, New Jersey enacted "Megan's law" provisions, all were released sex offenders must register with the law enforcement authorities. Law enforcement authorities to inform the relevant personnel according to different circumstances, must inform all members of society, they may encounter when necessary. "Megan's law" content is obviously a precautionary measures to be taken against dangerous sex offender recidivism. However, "Megan's law also affected the release from start with a clean slate, and give the government an excuse not to consider as a sex offender treatment of other forms of";^[40]"Sex offenders may be because the public understanding of its background and stigmatized, and this may make them forever unable to integrate into the community. But the community will also affect more meaningful and stigma related, once people know that a community accepted the released sex offender, because people 'vote with their feet' and evacuated to avoid the risk, the whole community will be stigma";^[41]"Even if the released sex offender upon release without any criminal act, will be individual or groups of attack";^[42]"The community in general may be willing to tolerate such illegal intervention. Such a thing has what good result for the rule of law will not";^[43]"The end result of this reaction may mean released sex offender has no place in this country, and will lose its right to live in any place a voluntary choice".^[44]As a result, it led to the release of sex offender recidivism. Therefore, emphasis on criminal law in risk control practices, but will add more risk.

In fact, the protection of criminal law is the law early excessive intervention of social life, is not conducive to the protection of the human rights of the citizen. In other words, the protection of criminal law early despised of securing freedom, the starting point is that citizens will be regarded as a dangerous source and the enemy, by depriving the freedom of citizens to achieve harmless society.^[45]In addition, the protection of criminal law early leads to heavy punishment. The reason is very simple, the criminal law must implement the principle of proportion, therefore, in the circumstances, the same circumstances, to murder, attempted murder and manslaughter accomplished preparation is not possible to specify the same statutory sentence (sentence). However, if the murder (sentence) general provisions of heavier punishment for murder, then accomplished provisions (sentence) legal punishment is heavy. Similarly, if the criminal law protection of early stage, then it must cause the penalty starting point in advance, in order to maintain the overall legal punishment is relatively balanced, must make the legal punishment of actual damage offense heavy.

Three, the "risk society" in criminal law according to the problem of illegal

In the illegal criminal law according to the problems, criminal law scholars has been conduct without value theory and the results of no value on the debate. Holding a pre theory scholars think, acts of violation of the norms of criminal law is illegal according to; holding the latter theory scholars think, act against the interests of the law or the threat of illegal criminal law according to the.

The tendency for many of the "risk society" of criminal law scholars have denied legal concept. For example, someone pointed out: "the risk of criminal law includes entity will turn into abstract, its connotation from the material to the spirit of the expansion, point to the idea of non-human. Because do not default interest content, cause and risk behavior is uncertain legal scope of damage, both objectively and subjectively for the content and scope of legal interests are difficult to control and identification, the connotation of boundless of interests, with a high degree of uncertainty, to the law basis of non-human so this is all the more alarming. So, at the risk of criminal law, legal status is declining, even dangerous by the end of the".^[46]Some people think, "PRC Criminal Law Amendment (eight)"^{[hereinafter referred to as the "criminal law amendment (eight)"]}Add the crime of dangerous driving, means "change from the protection of the interests of the law to risk prevention" concept.^[47]The author thinks, the above viewpoint is worth discussing.

First, with the development of society and the improvement of the living standards of the citizens, legal interests range is changed, but not be boundless. Even if they can certainly legitimate aims to protect the legal interests have to, but because of legal interest is the legislation can create, therefore, in some cases, understanding of the specific rights and interests and to determine whether it is worth the criminal protection often confused. "Generally speaking, in an established legal departments, need many judges and other officials of relevant means a long time to find the ideal relationship between,, defined purpose emerges."^[48]Then, the following phenomena: (1) have not been aware of certain reality belongs to the legal interest, now, future aware of the existence of legal interest, or on the contrary. For example, China's legislature has not realized the private documents of public credit is a kind of legal interest, perhaps in the future will be aware of this point. Also, people used to think that political beliefs, ideology is a kind of legal interest, but now do not think they belong to the law benefits. (2) the past didn't realize some benefit is worth by criminal law, now, future may realize some benefit is worth by the criminal law, or on the contrary. For example, no previous environmental resources as the legal interests protected, but now the environment and resources as an important legal interests by the criminal law for the protection of worth. As another example, in abroad (boundary) environmental management order now by the criminal law, the future may not worthy of protection by criminal law. (3) it used to be thought that a provision of the criminal law is to achieve this goal, only to find out later that this provision is to achieve this objective. For example, people used to think that the protection of legal interests of the crime of theft is the ownership of the property, but found that the protection of law of larceny is on property must now, but not limited to property ownership. Obviously, with the "risk society" of these cases did not closely related, more can't explain the decline and end position of interests.

Second, on the one hand that risk has a high degree of uncertainty, risk behavior will cause uncertain legal scope of damage, the connotation of boundless benefit; on the other hand, and that risk by criminal law, both stultify oneself. Risk is uncertainty means that people can know in advance whether a certain behavior is likely to cause harmful results, therefore, will not blindly ban. Provisions of the criminal law on the crime must be typed, and could not boundless; criminal law not stipulated that pose a risk to the acts constitute a crime. Even if the criminal law will act a certain risk is crime, the specific content must also determine risk; otherwise, it is impossible to form of criminal law.

Third, even if we think of "criminal law amendment (eight)" added the crime of dangerous driving in order to guard against the risk, also cannot deny that it is for the protection of law. "Criminal law amendment (eight)" was added the crime of dangerous driving, because with the large increase of the car, dangerous driving behavior has caused the type of danger the lives of others, the body of interests. In other words, "criminal law amendment (eight)" a dangerous driving crime is to protect the legal benefit.

Fourth, the status of legal interest in criminal legislation can not be denied. (1) method benefits the criminal legislation has the purpose of function. Legislation is a purposeful activity, the purpose of criminal law is the purpose of criminal legislation. The nature, scope and type it guides lawmakers determine the crime, the legislator prescribed crime and criminal responsibility of the significance of. The criminal legislation to protect the legal interest only for the purpose is rational, this is because: on the one hand, the criminal law does not It is without rhyme or reason. to punish those who did not infringe the legal interests of the behavior, so as to make the freedom to maximize human behavior by legal protection, the people mention the survival and the development in the nonaggression of interests; on the other hand because the criminal law, the penalty is infringed the legal interests behavior, so the legal interests are protected, the survival and development of the main interests. (2) legal interest that the scope of criminal penalties is rational function. Due to the application of criminal law relation of each person's life, health, freedom, fame and fortune, if the scope of criminal penalties is too broad, it will enable more people's interests deprivation; and if the punishment range is too narrow, it means a lot of interest without the protection of criminal law, therefore, which act to include the scope of criminal penalties, need to be recognized, the standard of fairness. In real life, is not affected by any negative evaluation actions should be subject to criminal penalties. For a certain behavior, they may be denied according to the code of ethics, or will be condemned according to the general living habits, but in ethics and habits by negative evaluation behavior is not necessarily infringed the legal interests behavior, so its not necessarily legally negative evaluation. Therefore, the concept of law not only makes the social harmfulness of concrete, but also makes the scope of criminal penalties is limited to the infringement of legal interests behavior. Furthermore, not all violations of law behavior should be subject to criminal penalties. Only when the interests are seriously violated, or only when other measures are not sufficient to protect the legal interest of criminal law, is worth to protect, we use the criminal law. (3) the penalty law limits of the criminal law has specific function. So, is because the law has the connotation and extension of clear. Benefit has the objectivity, law is a kind of objective existence, life interests, rather than values or other pure idea phenomenon or pure thinking phenomenon; legal interests have been violated, can be identified according to the objective law of cause and effect. If you deny the legal concept, then the criminal legislation will be be.

Many of the "risk society" criminal law scholars to conduct without value. For example, someone pointed out: "the legislative intention of the criminal law is the typical behavior of the risk of social consensus has been formed as a course may cause harmful behavior, and in order to prevent the occurrence of real harm, it is necessary to take it as the prohibited acts directly into sin, that is through things in front of the judge the behavior of risk behavior. It actually means that the object of the criminal law evaluation or criticism from the behavior of the result to the behavior itself, the wrongful act as the core of the criminal law. As for the judgment of the risk, as long as the identified with elements of behavior, because the behavior that is representative of the existence of risk. Thus, the risk of criminal law is used in the legislative mode of behavioral offense, which itself is of no value judgments".^[49]Others point out that, in the "risk society", shall complete the "conversion principle of legal interest to standardize damage damage principle...... The most typical applicable code damage the principle in the criminal law is the abstract dangerous crime settings. Abstract dangerous crime to conduct risk purely as a basis for criminal responsibility, in fact is through the control of specific actions to achieve distributed risk task. Abstract dangerous state of fiction, so its legislative purpose is actually not focus on the infringement of legal interest, but to replace sb. specification violations. In this situation, even if the infringement behavior person is never achieved against the interests of the people, act also deals with its violations' shall not implement a harmful act 'specification and bear the blame. Such as "Japanese criminal law" article 108th arson, that belongs to this".^[50]For this view, I beg to differ.

First, since that "the outstanding characteristic of risk society" risk is highly uncertain, scientific rationality has become incapable of action in the front of the risk,^[51]It is not possible through pre judgment directly to certain types of behavior into risk behavior. At the same time, since the "risk society" with a high degree of uncertainty, so the lawmakers also could not act preparation for risk behavior. In addition, even risk behavior recognized, lawmakers may not be prohibited, such as the nuclear power plant construction behavior belongs to the risk behavior, but the criminal law is not prohibited. If you think any risky behavior is behavior without value behavior and then banned, then people will can't do anything. In fact, it is because the behavior has a risk, only need to weigh the advantages and disadvantages, consider what behavior only pose a risk of real harm without potential benefits, which has caused the risk behavior in the real harm can bring benefits and many benefits, so as to determine whether the punishment and the punishment scope. And this is exactly the result of no value on results, but not conduct without value position.

Second, the behavior of all value on performance of rule utilitarianism, namely the country in order to protect the legal interest according to the experience of life rules, violation of the rules often violates the law profit, therefore, as long as the acts of violating the rules would be illegal, should be prohibited. However, if you think of "risk society" is uncertain, the rationality is not sure when it has risk, then the state how to make rules? Moreover, the rule utilitarian position very embarrassed, the lack of consistent theory system. If the rule utilitarian emphasis on experience that break some rules usually cause harmful results, it must comply with these rules, they become the deontology. If the rule utilitarian denies deontology, always use the result to defend behavior rules, so he turned to act utilitarianism; if the violation of a rule produces better results than to comply with this rule, then the rule utilitarian may according to the act utilitarianism to defend. So, is because when the rules and utilitarian (result) when a conflict occurs, the rule utilitarian or to violate the rules of the pursuit of good, or maintain rules give good results. Step back and say, even to conduct without value can not be obtained "if there is the risk of having no value" conclusion. There is no risk behavior is a fact judgment, and whether the behavior of value is a standard of judgment. Risky behavior can bring greater benefits, the behavior was a risk, but there is value. Therefore, the "risk society" theory is not without value theory provides the basis for the behavior.

Third, the German scholar Ya C Bush believes that the purpose of criminal law is the effective protection standard, but any proposition he eschewed the standard content "legality or illegality...... To provide any arbitrary jurists to legislation...... He suggested to give up 'outdated' rules, finally or (to) the law profit protection idea proposed here".^[52]

Fourth, behavioral offense without value does not directly correlate with behavior. Conduct crime refers to the behavior and results at the same time the crime occurred, such as trespass, the crime of insulting. Behavioral offense just don't need to judge causation, does not mean there is no real harm results. For example, "Japan penal code" the provisions of article 108th of arson, apparently to protect not specific or the majority of people's life, the body of this major legal interests, rather than to protect the specification itself.^[53]

In short, even if the "risk society" there are a lot of risk needs to be regulated by the criminal law, but also because the risk is the risk of law against the criminal law, the aim is to protect the legal interests. Therefore, in the "risk society" should adhere to the consequence without value.

Four, the "risk society" of the criminal responsibility according to the problem

Many of the "risk society" criminal law scholars have advocated the strict liability, tend to have negative liability doctrine. For example, someone pointed out that, in the "risk society", in order to accomplish the transformation from "the principle of responsibility to the 'responsible for the doctrine of'...... In order to effectively control risks, to guard against the risk of making people use 'organized irresponsibility' opportunism, risks are not allowed to make law without being punished phenomenon occurred repeatedly, the criminal law must find the relevant responsible person cylinder. Even if the harm results to produce no intentional even without fault, but as long as its participation in the risk process, will be as the main potential criminal responsibility and criminal law vigilant eyes firmly locked. The fact of crime of possessing, vicarious liability, strict liability and corporate criminal liability theory, is to implement the 'must have a person responsible for the' responsible 'Doctrine' spirit, so at the risk of punishment unknown or no subjective fault in...... With the advent of the risk society, responsibility principle has been shaken, the Anglo American countries' increasing in public welfare, transportation, public health and industrial safety of modern criminal legislation without the subjective intention and punishment ', and the strict responsibility from now on the stage of criminal law...... Because the ISP both in technology and in cyber source are overwhelming, if the ISP insists on responsibility, in the investigation, evidence, the prosecution in the absolute disadvantage, and apply strict liability makes the prosecution without the need to prove its intent or negligence, as long as it does not take measures that can be in the know after that, the degree of difficulty in greatly reduced".^[54]

The author thinks, afore-mentioned viewpoints debatable. The so-called "responsible" might just result liability, liability and damage than the results of human dignity go beyond. Because the responsibility is the real harm results occur only held responsible, and the above view means that all participate in the implementation of risk behavior of people, even if there is no intention and negligence should also bear the responsibility. If so, then the citizens without any freedom at all. "Morally, punishing some accident caused harm to society rather than on their own will cause harm to the society is unfair."^[55]Because this approach will only act as a tool, and does not respect the behavior of human personality. Even in Britain, the United States and other countries, strict liability has often criticized. For example, America scholars have pointed out: "strict liability for may occur in many different activities is not reasonable. It does not conform to condemn the principle of criminal law. It makes people afraid to engage in valuable social activities, but also, other less stringent measures on strict liability can safety is effective ".^[56]In fact, in USA, "many modern criminal law scholars are not very optimistic about the abandon crime psychological elements that...... "'" Model Penal Code of strict liability in criminal law is a direct attack'".^[57]Vicarious liability, strict liability is the breach of responsibility phenomenon in Britain and the United States, the law, they and the "risk society" had no direct correlation. In other words, the vicarious liability and strict liability exists before entering the "risk society". Corporate criminal liability also have no direct association with the "risk society". Therefore, that the "risk society" objectively resulted in a strict liability Exposition (even the arguer may disapprove) is not set up.^[58]

In fact, requires the criminal psychological condition is not conducive to the prevention of crime, on the contrary, the criminal psychological requirements, but can be free to choose the national make better. Because the penalty for pain essence, contains a negative evaluation of the behavior in the penalty, the penalty to convey to the behavior of people and common people, thus preventing the crime, so, on the implementation of the penalty may not influence the psychological state behavior sentenced, can not receive the effect of punishment. In other words, "impact on the meshing point it is the responsibility of the problem is the motivation to precisely when (Angriffspunkt) problem".^[59]"The punishment is a kind of educational measures, it is also a means of motivation, the motivation part to prevent the perpetrator to repeat the behavior (Jiao Zheng), in part to prevent others to do the same action (threat)...... Therefore, a responsibility problem is such a problem: in a given situation, who ought to be punished? Who should be regarded as the real perpetrators...... We do not blame a mental patient responsibility, the reason is, he is not motivated for providing unified site. He is trying to flog a dead horse to promise or threat, he confused mind because the normal mechanism disorder and cannot respond to that effect. We are not trying to give him some motivation, but efforts to cure him. When one is forced by threats and to do something, we do not blame him, but accused the gun pointing to his chest. The reason is very clear: if we were able to stop the threat that his behavior, may be prevented; this threat is to prevent in the future the same behavior must affect people."^[60]In a word, only when the citizen has the possibility of the implementation of other legal acts, can give the method for the implementation of the illegal behavior. If a citizen may choose not to give the criticism to other legal acts in the implementation of the act, so people just because of bad luck, bad luck was punished. This not only violates the citizen's feelings, and the purpose of punishment can not realize.

A lot of discussion of the "risk society" in criminal law theorists also believe that "risk society" objective responsibility to. For example, someone pointed out that: "the criminal law in risk society began to increasingly will harm prevention and risk management as an important task in itself, the traditional control method and technology of risk society has been difficult to adapt to the situation, in order to cater to the need of risk control, the principle of responsibility from emphasize behavior will freedom of choice for the justification of the punishment according to quietly turn to objective evaluation of behavior ability to control the movement and not to punish legitimate basis".^[61]Although scholars also believe that "this shift impact is profound and disturbing, so it led directly to the individual rights tool",^[62]But the description of the facts remain in doubt.

Objective the objective responsibility or culpability may have different meanings, because the "objective" was a word has many meanings. For example, a negligent crime can foresee judgment standard has always been a "subjective", "objective" and "compromise" struggle, the "objective" is to predict the capacity of ordinary people as the standard. However, the "objective" does not mean that was identified as a psychological or negligent behavior attitude error does not exist on the subjective, but does not mean that the "risk society" must take "objective theory". Moreover, the "objective" is not the "risk society" theory to produce. The possibility of consciousness of illegality judgment also have the same problems. Regardless of the "objective" is appropriate or not, even take "objective theory" does not mean that the responsibility of the content is objective.

In the author's opinion, some people think that the German criminal responsibility is the objective trend is mainly caused by the following two reasons: (1) the conduct without value dominated by Germany, intention and negligence is no longer responsible elements, but as illegal elements into the elements, therefore, not intentionally, the subjective fault elements of liability elements, possibility and expect only the responsibility, the possibility of illegal knowledge. For a behavior person has no responsibility must be judged objectively, and on whether it has possibility and look forward to the possibility of illegal knowledge must be based on objective facts or objective attached to normative judgment. So, the responsibility content seems to be objective. However, the author stands in consequence without value position, still think intentional, negligence liability form. In a word, in the view of consequence without value, responsibility can not be objective. In our country, adhere to the traditional four elements system of scholars, as long as the intentional, negligence is that elements of behavior "subjective", should not be accepted responsibility objective. (2) to regulate the responsibility theory to replace the previous psychological responsibility will lead to some people mistakenly believe that the psychological effect of criminal responsibility. No longer has functional consequences. However, if you stand on the consequence without value standpoint, the normative responsibility is not to replace the psychological theory of liability, but the requirements specification responsibility based on psychological responsibility. In other words, the implementation of illegal behavior whether the person shall bear criminal responsibility, not only depends on the behavior of people have no responsibility and intentional, negligence, and depends on the there is no possibility and look forward to the possibility of illegal knowledge, therefore, to regulate the responsibility is not to deny the psychological responsibility.