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Gao Mingxuan&Sun Daocui: The Concept of Preventive Criminal Law


Abstract: The change of social historical form determines the reform fate of the criminal law system, and the alternation of the global risk society and the network society has led to the mission of the contemporary criminal law to actively prevent risks. The concept of preventive criminal law has come into being, while the preventive legislation characterized with criminalization, the allocation of dangerous offenders, the superiority of security value and the positive prevention of penalty and so on has become the most concentrated carrier, but also confronted with many criticisms, thus, the introduction of comprehensive dogmatic thinking is necessary. We should face the objectivity of criminal law as management tools and the development of functionalism of contemporary criminal law and control the risks of extreme instrumentalism with the principle of proportionality. The historical destiny of the transformation of criminal form structure caused by social change is inevitable, and the scientific nature of criminal policy by connecting criminology and regulating criminal law. It is necessary to rethink the modest spirit of criminal law, and advocate effective and necessary sanction function of penalty by both relaxing the criminal role as ¡°ultima ratio¡± and releasing the potential effectiveness of the penalty to positively prevent crime.

Keywords: Risk Society; Preventive Criminal Law; Preventive Legislation; Functionalism; The Modest Spirit

(Editor: Liu Xiaoling)

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