The development of Chinese practice of an active and preventive view of criminal law
——Analysis from the perspective of the Criminal Law Amendment (XI).
Author: Liu Yanhong, Professor of Southeast University Law School, Doctor of Law.
Source: Comparative Law Studies, No. 1, 2021.
Abstract: The Criminal Law Amendment (XI) responds to social concerns in a timely manner and tightens the criminal law network to crack down on illegal crimes, which is of great significance for maintaining the security of a risky society. However, a structured analysis of the Criminal Law Amendment (XI) shows that the entire amendment is a legislative practice of a positive preventive view of criminal law, which is embodied in the field of criminal entities, through the criminalization of new types of acts to strengthen the governance of crimes that infringe on the interests of collective law; in the field of criminal sanctions, the punishment is increased by increasing the statutory punishment. The positive and preventive view of criminal law in the Criminal Law Amendment (XI) deserves reflection. When incorporating collective legal interests into the criminal law protection system, criminal legislation should follow the principle of substantialization of legal interest infringement and the proportionality of the constitution, so as to avoid the emptiness of the principle of legal benefit protection caused by the abstraction of collective legal interests and the reduction of criminalization standards. Criminal law should avoid becoming a mere means of social control, should return to criminal law with freedom and human rights at its core, and prevent the evolution of a positive and preventive view of criminal law into a radical view of criminal law.
Keywords: Criminal Law Amendment (XI), Active Preventive View of Criminal Law, Collective Legal Interests, Criminalization, Heavier Punishment
For the current era in the 21st century, network technology is leading, society is developing rapidly, risks are increasing, social irregularities are increasing, criminal legislation in order to respond to the value demands of social governance for security and stability, legislative activities are becoming more and more active, criminal law protection is becoming more and more forward-looking, criminal punishment is becoming more and more severe, criminal law has long been from the means of punishing crimes after the fact to the tools of crime prevention in advance, and positive preventiveism has become the mainstream of the current criminal law concept. On December 26, 2020, the 24th session of the Standing Committee of the 13th National People's Congress deliberated and passed the Amendment to the Criminal Law of the People's Republic of China (11) (hereinafter referred to as the "Amendment to the Criminal Law (11)"), which is precisely the legislative practice of this positive preventive criminal law concept and the support of criminal legislation for the positive criminal law concept, especially its embodiment of the concept of "adding new crimes". However, while a risk society is a consequence of the transformation of modernity, an unintended consequence of careful planning beyond reason, this does not prevent people from asking where the rationality of modern legislation lies. Whether the legislation is a response to pure social conflicts in society or a symbolic appeasement of people's security value demands, it is easy to say, "in order to maximize legal peace and public safety, what kind of criminal law should be enacted, this is first of all a purposeful issue." To this end, the timely analysis and reflection on the legislative practice of the positive preventive criminal law concept of the Criminal Law Amendment (XI) will undoubtedly contribute to the scientific development of China's criminal legislation in the future.
One
Legislative practice of an active preventive view of criminal law:
The Criminal Law Amendment (XI) is structurally reflected
The basic position that criminal legislation should actively prevent crimes to prevent the occurrence of risks has different expressions in criminal law theory, some expressed as a positive preventive view of criminal law, some expressed as a positive view of criminal law, and some expressed as a positive view of criminal law. Based on the fact that the positive position of criminal law comes from a risk society and the theory of risk criminal law and its role in crime prevention, the author prefers to adopt a positive preventive criminal law view. The positive view of criminal law, because the word "isms" has no practical meaning, it is actually a suffix of positive positions, and it is actually the same concept as the positive view of criminal law in essence. The positive criminal law concept is embodied in different aspects of criminal law theory and criminal policy such as legislation and legal benefits, and is preceded by the words "active preventive", such as active preventive legislation, the concept of active preventive legal benefits, active preventive criminal policies, etc., compared with directly calling it active legislation, positive legal benefits, active criminal policies, etc., its directionality is clearer, and its connotation and extension are clearer. To this end, the paper adopts active preventive criminal law and abandons two other concepts.
The active preventive view of criminal law advocates the use of criminal law as a means of preventing social risks. In terms of criminal legislation, it advocates expanding the criminal circle of criminal law and the scope of criminal punishment, and advocates increasing the statutory punishment for crimes, so that criminal law can become a tool for protecting social security. There are two indicators for measuring whether a piece of legislation is the embodiment of a positive preventive view of criminal law, one in the area of criminal entities and the other in the area of heavy criminal sanctions. If the proportion of criminalization and heavier punishment exceeds more than half of the entire legislative provisions, the legislation undoubtedly embodies a positive preventive view of criminal law. Using this as a yardstick, we can find that the legislation of the entire Criminal Law Amendment (XI) is the embodiment of a typical positive and preventive view of criminal law.
(1) The active preventive view of criminal law is embodied in the criminalization of the criminal entity field
The positive preventive view of criminal law is embodied in the field of criminal entities and in the field of criminal sanctions, the former mainly achieved through the criminalization of the substantive field, and the latter through aggravated sentences in the field of sanctions. Specifically, the active preventive view of criminal law "exerts its efforts in the field of criminal entities, mainly focusing on crimes in which there is a super-individual legal interest or a collective legal interest: first, terrorist crimes." Second, cybercrime. Third, corruption is committed. Fourth, food and drug crimes. Fifth, environmental pollution crimes. Sixth, crimes of public order (criminalization of civil and administrative violations). Seventh, there has been a significant expansion of crimes committed by units. Eighth, inaction as an increment of crime". In other words, a positive preventive view of criminal law is achieved through the criminalization of some areas of collective legal interest crime. According to this analysis, the Criminal Law Amendment (XI) fully embodies the positive preventive criminal law concept in the field of criminal entities. The criminalization of the Criminal Law Amendment (XI) is reflected in the following two aspects: On the one hand, the Criminal Law Amendment (XI) expands the scope of punishment in the Criminal Law by adding new crimes. The Criminal Law Amendment (XI) has the highest degree of criminalization among the eleven criminal law amendments, with a total of 18 new offences. Two new crimes were added to the crime of endangering public safety, namely, article 2 the crime of violently endangering traffic safety and the crime of major liability accident danger in article 4; the crime of undermining the order of the socialist market economy was added to the crime of illegal production and sale of drugs, and article 9, paragraph 2, was the crime of organizing and directing the fraudulent issuance of stocks and bonds. One crime has been added to the crime of violating citizens' personal rights and democratic rights, that is, article 27 adds the crime of sexual assault on protected minors; 13 new crimes are added to the crime of obstructing social management order, article 23 is the crime of stealing, spying, buying, and illegally providing trade secrets by foreign institutions, organizations, and personnel (at the same time, through the provisions of article 24, it is clear that the unit is also the subject of this crime), article 31 is the crime of violent attack on the police, article 32 is the crime of misappropriation and fraudulent use of other people's identity to replace school enrollment and employment, and article 33 is the crime of throwing objects from a high altitude. Article 34 The crime of illegally collecting debts, Article 35 The crime of insulting and defaming the honor of heroes and martyrs, the crime of organizing and soliciting outbound gambling, article 38 the crime of illegally collecting, transporting, mailing and carrying human genetic material out of the country, article 39 the crime of illegally engaging in human gene editing and cloning embryos, article 41 the crime of illegally hunting, purchasing, transporting and selling wild terrestrial wild animals, article 42 the crime of illegally reclaiming and developing national parks and national nature reserves, and article 43 illegally disposing of invasive alien species, Article 44 is the crime of inducing, instigating or deceiving athletes into using doping or illegally providing doping.
On the other hand, the Criminal Law Amendment (XI) expands the scope of punishment under the Criminal Law by amending the original provisions or the old crimes, with a total of 15 such provisions. Specifically, there is one provision in the General Provisions: Article 1 of the Criminal Law Amendment (XI) amends article 17 of the Criminal Law, reducing the age of criminal responsibility for juvenile delinquency. The Criminal Law Amendment (11) stipulates in this article that "a person who has reached the age of 12 but is not yet 14 years old, commits the crime of intentional homicide or intentional injury, causes death to a person or causes serious injury by particularly cruel means and causes serious disability, and the circumstances are heinous, and the prosecution is approved by the Supreme People's Procuratorate, shall bear criminal responsibility". There is no doubt that this provision expands the scope of penalties in criminal law. The Criminal Law Amendment (XI) amends the constituent elements of the 14 existing crimes in the original Criminal Law sub-provisions, and expands the scope of punishment in the Criminal Law. (1) Article 3 amends the constituent elements of the crime of compulsorily ordering illegal and risky operations in article 134, paragraph 2, of the Criminal Law, and adds a new mode of conduct that "knowing that there are hidden dangers of major accidents but not eliminating them, but still taking the risk of organizing operations", and expands the scope of punishment for this crime. (2) Article 5 amends article 141 of the Criminal Law to the crime of producing and selling counterfeit drugs, adding the provision that "personnel of drug-using units who knowingly provide counterfeit drugs to others for use shall be punished in accordance with the provisions of the preceding paragraph", thereby expanding the scope of punishment for this crime. (3) Article 6 amends article 142 of the Criminal Law to the crime of producing and selling inferior drugs, adding the provision that "personnel of drug-using units who knowingly provide inferior drugs to others for use shall be punished in accordance with the provisions of the preceding paragraph", thereby expanding the scope of punishment for this crime. (4) Article 8 amends article 160 of the Criminal Law on the crime of fraudulently issuing stocks and bonds, adds the provision that "issuing depository receipts or other securities determined by the State Council in accordance with law" constitutes a crime, and expands the target of this crime. (5) Article 9 amends article 161 of the Criminal Law to the crime of disclosing or not disclosing important information in violation of regulations, adding that the act of committing or organizing or directing the illegal disclosure or non-disclosure of important information by a company, the controlling shareholder or actual controller of an enterprise constitutes a crime, and at the same time adds the crime of the unit. (6) Article 14 amends the constituent elements of the crime of money laundering in article 191 of the Criminal Law, changing the constituent elements of the money laundering crime of "knowingly concealing or concealing the origin and nature of drug crimes, organized crimes of a triad nature, terrorist activities, smuggling crimes, embezzlement and bribery crimes, crimes of undermining financial management order, and financial fraud crimes and the proceeds thereof, in order to conceal or conceal their origin and nature", to "to conceal or conceal drug crimes, organized crimes of a triad nature, terrorist activities, smuggling crimes, embezzlement and bribery crimes, The proceeds of crimes of undermining the order of financial management, the proceeds of crimes of financial fraud and the sources and nature of the proceeds they produce" constitute the crime of money laundering, thereby abolishing the constitutive elements of subjective knowledge and reducing the conditions for criminalization. (7) Article 17 amends article 213 of the Criminal Law to the constituent elements of the crime of passing off a registered trademark, adding that "without the permission of the owner of a registered trademark, the use of a trademark identical to its registered trademark on the same service" is a serious offence, thereby expanding the scope of punishment for this crime. (8) Article 18 amends the constituent elements of the crime of selling counterfeit registered trademarks in article 214 of the Criminal Law, amending the original "large amount of sales" to "where the amount of illegal income is relatively large or there are other serious circumstances", and the aggravating circumstances of the sentence of "huge amount of sales" are modified to "the amount of illegal gains is huge or there are other particularly serious circumstances", and the criminal circumstances in addition to the amount of the crime are added to the standard of criminalization and sentencing, the scope of punishment is expanded and the punishment is increased. (9) Article 20 amends the constituent elements of the crime of copyright infringement in article 217 of the Criminal Law, adds the provision that infringement of "copyright-related rights" constitutes a crime, and expands the scope of punishment. (10) Article 21 amends the constituent elements of the crime of selling infringing copies in article 218 of the Criminal Law, adding the provision of "or other serious circumstances" to the original criminalization criterion of "huge amount of illegal gains", and expanding the scope of punishment for this crime. (11) Article 22 amends article 219 of the Criminal Law for the crime of infringing trade secrets, and amends the original provision "causing significant losses to the right holder of trade secrets" to "serious circumstances", thereby changing the crime from a result to a crime committed by a crime, and lowering the threshold for the crime to be committed. (12) Article 36 amends the statutory penalty for the crime of opening a casino in article 303, paragraph 2, of the Criminal Law, increasing the "fixed-term imprisonment of not more than three years" to "fixed-term imprisonment of not more than five years" and "fixed-term imprisonment of not less than three years but not more than ten years" to "fixed-term imprisonment of not less than five years but not more than ten years". (13) Article 37 amends the provisions of article 330 of the Criminal Law on the crime of obstructing the prevention and control of infectious diseases, and amends the original provision "causing the spread of Class A infectious diseases or having a serious risk of spreading" to "causing the spread of Class A infectious diseases and infectious diseases that are determined in accordance with law to adopt measures for the prevention and control of Class A infectious diseases or has a serious risk of spreading", so as to make the spread of infectious diseases determined in accordance with the law to take measures for the prevention and control of Class A infectious diseases also the scope of infectious diseases of this crime, and the sale, Transporting articles contaminated by infectious disease pathogens or possibly contaminated by infectious disease pathogens in epidemic areas that are not disinfected will also be treated as criminal acts, which greatly expands the scope of punishment for this crime. (14) Article 45 amends article 408 of the Criminal Law on the constituent elements of the crime of malfeasance in food supervision, expanding the scope of application of this crime from "food safety supervision" to "food and drug safety supervision"; revising the original "causing major food safety accidents or causing other serious consequences" to "causing serious consequences or other serious circumstances", so that the criminalization criteria for this crime add serious circumstances that are difficult to grasp in addition to the objective consequences, and expand the scope of the criminal law.
In short, the 18 new crimes added above the Amendment (XI) of the Criminal Law and the 14 crimes plus 1 general provision after the revision and expansion, a total of 33 articles, are all undergoing criminalized legislation. All of this undoubtedly reflects a positive preventive view of criminal law. Although there are some amendments to the text that reflect the narrowing of the scope of the attack, for example, article 11 deletes the "other serious circumstances" in the crime of fraudulently obtaining loans, acceptance of bills and financial instruments in article 175 of the Criminal Law, thereby limiting the punishment of this crime to the situation of major losses, which greatly narrows the scope of the attack on this crime. Another example is article 13, which adds the constituent elements of the crime of manipulating securities and futures markets in article 182 of the Criminal Law to the provision of "affecting the price of securities or futures transactions or the volume of securities and futures transactions", thereby limiting the scope of punishment for this crime. However, in general, adding new crimes or expanding the scope of punishment for old crimes is the basic position of the Criminal Law Amendment (XI).
(2) The positive preventive view of criminal law is embodied in the heavier punishment in the field of criminal sanctions
The legislation of the active preventive view of criminal law "is embodied in the field of criminal sanctions, which has a certain impact on the criminal punishment category such as the theory of the purpose of punishment, and also pushes the penal system, the penal system and its reform into the deep water area." Mainly including: First, occupational prohibition. Second, the restraining order. Third, life imprisonment. Fourth, the birth and punishment system is getting heavier. Fifth, the restraint of punishment reduction. Sixth, the expansion of fines and penalties." There are 13 articles in the Criminal Law Amendment (XI) that are embodied in the field of criminal sanctions, which are amendments to the statutory penalties for previous criminal law crimes, which are manifested in the main direction of heavy punishment, the aggravation of life sentences, and the increase in the scope of application of property penalties. This is in full line with the performance and direction of penal legislation on a positive preventive criminal law view.
The Amendment (XI) to the Criminal Law amends the statutory penalties for some previous crimes, and its content mainly involves: (1) Article 9 amends the statutory penalty for the crime of illegal disclosure and non-disclosure of important information in article 161 of the Criminal Law, abolishes the limit on the range of the original fine for the crime of "a fine of between 20,000 yuan and 200,000 yuan", and at the same time raises the statutory sentence from less than three years to less than five years, and adds the weight of "if the circumstances are particularly serious, the sentence shall be fixed-term imprisonment of not less than five years but not more than ten years, and a fine" is added. (2) Article 10 amends article 163 of the Criminal Law to the statutory penalty for the crime of bribery of non-state functionaries, and the original statutory sentence for this crime was "fixed-term imprisonment of not more than five years or criminal detention, and if the amount is huge, it shall be sentenced to fixed-term imprisonment of not less than five years, and may also be sentenced to confiscation of property", and is now amended to "sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be fined; if the amount is huge or there are other serious circumstances, it shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined; if the amount is particularly large or there are other particularly serious circumstances, shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment and shall also be fined". This amendment increases the original two sentencing grades for this crime to three grades, and at the same time raises the statutory maximum sentence from fixed-term imprisonment to life imprisonment. At the same time, the second sentencing grade was originally applied only to the case of a huge amount, that is, the staff of a company, enterprise or other unit took advantage of their position to solicit other people's property or illegally accept other people's property or property to seek benefits for others, and the amount was huge; now "or other serious circumstances" has been added, thus expanding the conditions for applying the heavier punishment. (3) Article 12 amends the statutory penalty for the crime of illegally absorbing deposits from the public in article 176 of the Criminal Law, abolishes the original limit on the range of the fine of "20,000 yuan to 200,000 yuan" and "fine of between 50,000 and 500,000 yuan", and directly stipulates that "a fine of concurrent or a single fine" is added; a new sentencing grade, that is, "if the amount is particularly large or there are other particularly serious circumstances, it shall be sentenced to fixed-term imprisonment of not less than 10 years and shall also be fined". Both of these changes increase penalties by increasing the statutory penalties. The new paragraph 3 stipulates that "if there is an act mentioned in the preceding two paragraphs, if the stolen goods are actively returned before the public prosecution is initiated, and the occurrence of damages is reduced, the punishment may be mitigated or mitigated", which is conducive to narrowing the scope of the crackdown, but it does not shake the fact that the crime is heavily punished. (4) Article 15 amends the statutory penalty for the crime of fund-raising fraud in article 192 of the Criminal Law, amending the first sentencing grade of the crime, "fixed-term imprisonment of not more than five years or criminal detention", to "sentenced to fixed-term imprisonment of not less than three years but not more than seven years", deleting the provisions on the original penalty range of "20,000 yuan to 200,000 yuan" and "50,000 yuan to 500,000 yuan", changing the "fixed-term imprisonment of more than five years or less than 10 years" with a huge amount or other serious circumstances to more than seven years, and increasing the life imprisonment; The penalty of confiscation of property has been added after the fine. Delete the original third sentencing grade of the crime: Where the amount is particularly large or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined between 50,000 and 500,000 yuan or confiscated of property. The revision of the statutory penalty for this crime is also generally improved. (5) Article 17 amends the statutory penalty for the crime of counterfeiting a registered trademark in Article 213 of the Criminal Law to read "if the circumstances are particularly serious, the penalty shall be fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined"; the original maximum sentence of "fixed-term imprisonment of not more than seven years" is raised to "fixed-term imprisonment of not more than ten years". (6) Article 19 amends article 215 of the Criminal Law to the statutory penalty for the crime of illegally manufacturing or selling illegally manufactured registered trademark marks, and deletes the original provision of "criminal detention or public surveillance". (7) Article 22 deletes the criminal sentence for infringement of trade secrets under article 219 of the Criminal Code. The Amendment to the Criminal Law (XI) amends the statutory penalties for crimes in articles 215 and 219 of the Criminal Law, both of which are the deletion of light sentences (criminal detention) and the retention of heavy sentences (fixed-term imprisonment), which is undoubtedly also a manifestation of the increase in statutory sentences. (8) Article 25 amends the statutory penalty for the crime of providing false supporting documents in article 229 of the Criminal Law, and adds a new weight penalty of "fixed-term imprisonment of not less than five years but not more than ten years and a fine" to the original statutory sentence. (9) Article 26 amends the sentencing circumstances of rape in article 236 of the Criminal Law, adding two aggravating circumstances: "for the public rape of a minor girl in a public place" and "for rape of a minor girl under the age of 10 or causing harm to a minor girl". (10) Article 28 separates the statutory penalty for child molestation, paragraph 3, of article 237 of the Criminal Code, and increases its maximum sentence of 5 years to 15 years. (11) Article 29 amends the statutory penalty for the crime of usurpation of office in article 271, paragraph 1, of the Criminal Law, by amending the first sentencing grade of not more than five years to less than three years and adding a fine of less than two years; the second sentencing grade of "sentenced to fixed-term imprisonment of not less than five years may be imposed concurrently forfeiting property" to "sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined"; in addition, the third sentencing grade has been added" and the third sentencing grade has been added, and the amount of fixed-term imprisonment of not less than ten years or life imprisonment shall be imposed and a fine shall be imposed", and through the above amendments, The statutory maximum penalty for this offence has been raised from the previous 15 years' imprisonment to life imprisonment. (12) Article 30 increases the statutory penalty for the crime of misappropriation of funds under article 272 of the Criminal Code from the original two sentencing levels to three, thereby increasing the statutory maximum sentence of 10 years to 15 years. (13) Article 40 amends the conditions for the aggravating punishment of article 338 of the Criminal Law for the crime of polluting the environment from "particularly serious consequences" to "serious circumstances", and adds the sentencing level of "sentenced to fixed-term imprisonment of not less than seven years and a fine", thereby increasing the statutory penalty for this crime from a maximum of 7 years to 15 years of fixed-term imprisonment.
In short, one of the prominent manifestations of the Criminal Law Amendment (XI) in the field of criminal sanctions is: the expansion of fines and the aggravation of property penalties. The provisions on the range of fines for some crimes have been abolished, thus increasing the application of fines and penalties; Another obvious manifestation of the Criminal Law Amendment (XI) in the field of criminal sanctions is to increase the sentencing level of some crimes and raise the statutory maximum sentence. Although the Amendment (XI) to the Criminal Law amends the statutory penalties for certain crimes to be more reasonable and scientific, for example, article 46 of the Criminal Law amends article 431, paragraph 2, of the Criminal Law as the statutory punishment for the crime of stealing, spying, bribing or illegally providing military secrets abroad, from the original "sentence of fixed-term imprisonment of not less than ten years, life imprisonment or death" to two statutory sentences: "fixed-term imprisonment of not less than five years but not more than ten years" and "if the circumstances are serious, it shall be sentenced to fixed-term imprisonment of not less than ten years, life imprisonment or death". This amendment makes the statutory penal provisions for this offence more reasonable. However, such amendments account for too little of the entire Criminal Law Amendment (XI).
In summary, the Criminal Law Amendment (XI) contains a total of 48 articles, of which Article 48 stipulates its effective date and the other 47 articles are specific provisions on the content of the amendment to the Criminal Law. Among these 47 articles, the provisions on decriminalization are zero, and 18 articles on new crimes are added, accounting for 38%; there are 15 articles that modify the original criminal law provisions and expand the scope of punishment, 13 articles that increase statutory punishments to achieve heavy punishment, 5 articles that exist at the same time as criminalization and heavy punishment are removed, and 23 articles that modify the constituent elements of old crimes to expand the scope of punishment plus increase the punishment, accounting for 49%. As a result, the criminalization of new types of acts plus the expansion of existing crimes and the heavier punishment of existing crimes, a total of 41 articles in three types of amendments, accounting for 87% of the entire Criminal Law Amendment (XI). In addition, there are six provisions of the Criminal Law Amendment (XI) that are not criminalized and heavily criminalized, but reflect the rationalization of criminal legislation and related technical content. The six articles are: articles 11, 13, 16, 24, 46 and 47. As mentioned above, articles 11, 13 and 46 are limited modifications, while the remaining provisions are technical modifications. When social governance is increasingly threatened by financial crimes, corruption crimes, environmental crimes, etc., the punitive and severe nature of criminal law is becoming increasingly prominent. Judging from the Criminal Law Amendment (XI), the penal power of the state has not been controlled, but has been expanding.
Two
The "active prevention" of the positive preventive criminal law concept is developed in the connotation of the Criminal Law Amendment (XI).
Although the positive preventive criminal law concept is manifested in the two aspects of the criminal entity field and the criminal sanction field, the combination of these two aspects reflects the above-mentioned "crimes mainly concentrated in the super-individual legal interests or collective legal interests", and "legislative strategies are mainly manifested in criminalization, dangerous criminal allocation, early intervention and other aspects". Expanding the scope of application and punishment of fines and property penalties, as well as increasing the range of free sentences, is ultimately nothing more than the embodiment of "criminal law is no longer the scope of legal protection, but instrumentalized for the implementation of a specific social concept", which is the result of the legislative strategy of active preventive criminal law concept. In short, looking at the criminalization and aggravation of the Criminal Law Amendment (XI) in the field of criminal entities and criminal sanctions, the basic position of the Criminal Law Amendment (XI) is to protect the interests of collective law rather than individual legal interests, which is the embodiment of the protection of the value of positive preventive criminal law to social security.
Whatever the title of the positive preventive view of criminal law, it is certain that the preventive view of criminal law has a negative preventive view of criminal law and a positive preventive view of criminal law. The concept of passive preventive criminal law advocates that in order to protect civil liberties and human rights, the scope and extent of the state's penal power are limited, the excessive interference of the state's penal power in civil liberties is prevented, the criminalization legislation is reduced, and a more restrained negative preventive criminal law concept combining preventive and limited nature is formed. The negative preventive view of criminal law is based on the general preventiveism and consequentialism of the classical school, and its fundamental value orientation is the protection of human rights. However, the frequent occurrence of social risks has led to the wavering of the value orientation of human rights protection in criminal law, and gradually turned to the protection of social security, from the perspective of criminal law to regulate the increasing social risks and maintain social security and order has become the main goal of criminal law, and the negative preventive criminal law concept has long been turned to a positive preventive criminal law concept. The concept of active preventive criminal law advocates that in order to achieve social security governance, the state expands and strengthens the use of the state's penal power, prevents social irregularities through the state's penal power to maintain social stability and order, advocates criminalization legislation, and forms a more open and positive preventive criminal law concept that combines prevention and expansion. The positive preventive view of criminal law is based on the positive preventiveism and behaviorism of the modern school, and its fundamental value orientation is the protection of legal interests. "Preventive criminal law legislative activities have been carried out in an orderly manner in recent criminal law amendments, and the concept of criminal law oriented by active prevention is developing", and the revision of the Criminal Law Amendment (XI) is very strong, and its criminalization is mainly concentrated in the fields of public safety, economic order, social order, food and drugs, environmental pollution, and finance. In general, the Criminal Law Amendment (XI) responds to social concerns in a timely manner, adjusting the statutory penalties for some crimes with a moderate degree of severity, making the legislative technology for some crimes more refined, and making the criminal law network more stringent. These amendments are undoubtedly of great significance to safeguarding social security and national security.
First of all, the criminalization legislation of the Criminal Law Amendment (XI) mainly focuses on crimes with super-individual legal interests or collective legal interests. Professor Hefendehl, a German scholar, pointed out that "the legal benefits that serve many people or society are collective legal benefits (Kollektiv Rechtsguter) or universal legal benefits (Universalrechtsgut)", and collective legal benefits have three characteristics: non-exclusivity (Nicht-Ausschließarkeit, that is, it cannot be excluded from others to enjoy); non-relativity (Nicht-Rivatät, that is, can be enjoyed at the same time, Such as environmental resources); indivisibility (Nicht-Abnutzbarkeit). Thus, in his view, the collective legal interest refers to the legal interest that all potential members of society can use, and it is not possible to assign a particular part of it to a particular member of society. The Criminal Law Amendment (XI) is a crime that violates the interests of collective law, whether it is a new crime added or an old crime that has been modified. The Criminal Law Amendment (XI) further revises and expands the scope of protection of transpersonal legal interests such as social order by criminalizing acts of high-altitude throwing objects, violent snatching of steering wheels, illegal debt collection, and other acts of public concern, thereby further revising and expanding the scope of protection of transpersonal legal interests such as social order, reflecting the positive preventive criminal law concept of "in all countries and social fields prone to danger" and "the criminal law is used to meet the behavioral needs of security policies and curb the occurrence of absolutely dangerous criminals".
Among the 18 new crimes added to the Criminal Law Amendment (XI), in addition to the crime of sexual assault on protected minors, which is a crime of infringing on personal legal interests, the other 17 crimes are concentrated on the crime of endangering public security, the crime of undermining the order of the socialist market economy, and the crime of obstructing the order of social management. Take, for example, the crime of illegally collecting debts under article 293 of the Criminal Law, which is added to article 34 of the Criminal Law Amendment (XI), which refers to the use of violence, coercion, or restriction of the personal freedom of others or intrusion into other people's homes, or intimidation, stalking, harassment of others, collection of illegal debts arising from usurious lending, etc., with serious circumstances. Usury debts are illegal debts, in addition, illegal debts include gambling debts, debts of minors, debts for illegal purposes, debts arising from IOUs written under duress, etc. For debts not protected by these laws, it is a crime if the perpetrator uses violence or other illegal means to collect debts. Here, the protection of the legal interests of this crime is not the interests of creditors, the object of protection is not the debt itself, but the protection of normal financial order, "illegal debt collection may lead to intentional injury, illegal intrusion into the house, illegal detention and other criminal acts, often involving joint crimes and other issues, which makes it more difficult to deal with judicial practice." In other words, illegal debt collection violates the social order and creates chaos to the stability of society, and the social order and the specific financial order itself obviously cannot be excluded from the enjoyment of others, and can be enjoyed by the unspecified people of society at the same time, and at the same time inseparable. The strengthened protection of this collective legal interest makes the Criminal Law Amendment (XI) as a whole reflect a strong emphasis on security over freedom, and on society over the individual. If in the process of illegal debt collection, the legal interests of others are infringed upon by means of violence, coercion or other means, the crime of intentional injury, the crime of illegal intrusion into the residence of others and other crimes can be directly applied; if the illegal debt collection does not meet the standard of conviction for crimes constituting the crime of intentional injury, it can be handled through the provisions of the Public Security Administration Punishment Law, and there is no need to use criminal law means. Obviously, the criminalization of illegal debt collection is not a debt collection behavior that infringes on the legal interests of others such as intentional injury, but the illegality of debt collection means, which reflects the criminal law's shift from the result of worthlessness to the worthlessness of behavior, "through criminal legislation to intercept risks to prevent it before it occurs; it is to prevent in advance, rather than to punish the harmful consequences caused by the infringement of legal interests", which is a change in the legislative view of engaging in the practice of punishing crimes after the crime is actively prevented beforehand.
In the 15 articles of the Criminal Law Amendment (XI), the Criminal Law Amendment (XI) expands the scope of punishment for old crimes such as the crime of producing and selling counterfeit drugs by lowering the age of criminal responsibility, adding new modes of conduct, adding new criminal objects, lowering the standard of criminalization, expanding the subject of crime, and abolishing subjective knowledge, etc., to strengthen the protection of collective legal interests. This reflects the impact of the concept of risk prevention on traditional crimes, and is also the embodiment of criminal legislation for positive preventive measures. In addition to the 1 general provision, the 14 old crimes covered by the other 14 sub-provisions and the crimes that do not infringe on the interests of individual law are all crimes from the crimes of undermining the order of the socialist market economy and the crime of obstructing the order of social management, in other words, they are all crimes of infringing on collective legal interests with non-exclusive, non-relativistic and indivisible nature. However, when incorporating collective legal benefits into the criminal law protection system, the principle of substantialization of legal interests and the proportionality of constitutional rights should be followed, so as to avoid the emptiness of the principle of legal benefit protection in criminal law caused by ways that expand the scope of punishment such as the abstraction of collective legal benefits and the reduction of criminalization standards. The Federal Constitutional Court of Germany has made it clear that legal interests include both individual legal interests and collective legal interests, but at the same time it has held that the protection of others or the public can only be lawful if intervention can be required under the consideration of the principle of proportionality. Taking the revision of the constituent elements of the crime of money laundering as an example, article 14 of the Criminal Law Amendment (XI) abolishes the known element of the crime, as long as it is for the purpose of concealing or concealing the proceeds of the seven types of crimes such as drugs and the source and nature of the proceeds generated, whether it is known or not, it can constitute the crime of money laundering. However, as an act of infringing on the collective legal interests of financial management order, money laundering is difficult to measure, and if it lacks knowledge, it means that in the future, the judicial organs will lack a very important criterion for the identification of money laundering crimes, and the judicial organs will no longer need to investigate and adduce evidence for whether the perpetrators are aware or not. Some people may think that article 14 of the Criminal Law stipulates that "knowing that one's own behavior will have a result harmful to society, and hoping or allowing such a result to occur, so that it constitutes an intentional crime", the crime of money laundering is an intentional crime, even if the constituent element of "knowing" is modified and abolished, but according to the provisions of article 14 of the Criminal Law, the crime actually has the requirement of "knowing", and the "Criminal Law Amendment (XI)" formally cancels the "knowing" in the formulation of the provisions. It does not affect the knowledge of the subjective aspects of the offence of money-laundering. However, this view does not hold. As a definition of intent to commit a crime, knowledge is the knowledge of the outcome, while money-laundering is the knowledge of the facts of the object of money-laundering, which is of different nature; For example, article 138 of the Criminal Law requires that the crime of not taking measures or failing to report in a timely manner to a school building or educational and teaching facility knowing that there is a danger is constituted; article 144 of the Criminal Law is a constituent element of the crime of selling poisonous or harmful food is "selling food that is knowingly mixed with toxic or harmful non-food raw materials"; article 172 of the Criminal Law is "holding and using counterfeit currency knowingly"; and so on. It can be seen that the "knowing" in the constituent elements of individual crimes in the criminal law sub-provisions has a meaning independent of the definition of criminal intent in the general provisions of the criminal law. The constituent elements of the criminal law sub-provisions "knowing" are subjective constituent elements established for specific crimes, and only with knowledge can criminal intent be established; such knowledge is an emphasis on the understanding of specific facts and the strengthening of the status and role of criminal evidence determination in criminal justice. The general principle of criminal law is the knowledge of criminal intent, which is the requirement for deliberately constructing itself, the knowledge of the results and nature of the norm, rather than the knowledge of the specific facts of the crime, which is the subjective constituent element of all intentional crimes; in other words, criminal intent is not equivalent to having an understanding of specific facts. In short, for crimes for which the sub-provisions of the Criminal Law specifically require "knowing" to have the constituent elements, only with knowledge as a specific subjective constituent element can the criminal intent as a general subjective element be possessed. "The knowledge referred to in the general provisions of the Criminal Law is different from the knowledge referred to in the sub-provisions of the Criminal Law. The former is a basis for one of the basic subjective elements; the latter is a specific subjective element. When the crime requires this specific subjective element, the knowledge of the criminal law sub-provisions is the first knowledge, and the knowledge of the general provisions of the criminal law is the second knowledge. There is not necessarily a second knowing when there is a first knowing. However, the knowledge in the sub-rules is not equal to the knowledge in the general rules, and only with the knowledge in the sub-rules can the knowledge in the general rules be produced. "The Abolition of the Known Constitutive Elements of the Crime of Money Laundering in the Criminal Law Amendment (XI), resulting in an expansion of the scope of punishment, may result in the protection of collective legal interests failing to achieve the principle of proportionality of administrative law, which has methodological significance for the implementation of the principle of protection of legal benefits. In short, there are 15 articles in the Criminal Law Amendment (XI) that modify the existing provisions of the Criminal Law, that is, the reduction of the age of criminal responsibility for juvenile crimes and the expansion of the constituent elements of the 14 old crimes represented by the crime of money laundering, which are undoubtedly the embodiment of strengthening the protection of collective legal interests, strengthening the security shaping function and order maintenance function of the criminal law, and these are the results of the implantation of a positive preventive criminal law concept.
Secondly, the embodiment of the positive preventive criminal law concept in the Criminal Law Amendment (XI) is that whether it is by adding new crimes to expand the scope of punishment or by modifying the old crimes to expand the scope of punishment, these legislations reflect the early protection of legal benefits represented by the addition of dangerous crimes; at the same time, the benchmark of illegality is gradually moved from the result of valuelessness to the valuelessness of behavior, the early intervention of criminal law, and the subjectivization of criminal law punishment, which is the embodiment of active prevention of positive preventive criminal law concept.
The increase in dangerous offenders fully reflects the "active prevention" of the positive preventive criminal law concept. The new crimes added to the Criminal Law Amendment (XI) are mainly dangerous crimes, and the new crimes such as violent endangering traffic safety, the dangerous crime of major liability accidents, the crime of throwing objects from a height, and the crime of illegally collecting debts are typical representatives. Article 2 of the Criminal Law Amendment (XI) stipulates that "the use of violence or robbery control driving control devices on the drivers of public transportation in motion, interfering with the normal operation of public transportation vehicles, and endangering public safety" is a crime of violently endangering traffic safety; article 4 stipulates that "violating the provisions on safety management in production and operation and having a real risk of major casualties or other serious consequences" constitutes a dangerous crime of major liability accidents; article 27 stipulates that" Throwing an object from a height or other height, if the circumstances are serious, is the crime of throwing objects from a height. These three new sins are typical dangerous crimes. Crimes in criminal law can be divided into real offenders and dangerous offenders according to the intensity of the violation of the object of the act. The former means "injury to the object of the act, i.e. loss of actual value", and the latter to "where a dangerous situation is created for the protected subject on which the constituting elements are preconditioned". The object of conduct in German and Japanese criminal law refers to the object of the crime, and the object of protection is also the legal interest of the crime. Crimes of violent endangering traffic safety, crimes of danger of major liability accidents, crimes of throwing objects from heights and other crimes are all crimes that have not yet caused infringement on the object of the act, that is, there is no casualty caused by acts such as snatching the steering wheel, there is no accident caused by violations of safety management regulations in production operations, and property losses or casualties caused by high-altitude projectiles are only determined as crimes because they pose a danger to the object of protection of the criminal law, that is, the collective legal interests such as public safety legal interests and social order legal interests. Indeed, the implementation of the steering wheel of moving public transportation vehicles and other behaviors will undoubtedly pose a danger to public safety; in mining, building construction and other production operations, if you do not comply with the relevant safety production management regulations will bring great danger to public safety and production safety; with the acceleration of China's urbanization process, the number of urban high-rise buildings is increasing, and the high-altitude projectile behavior will cause great danger to social life. However, when the danger only stays at the level of infringement of collective legal interests and does not lead to real harmful consequences, the criminalization of such acts is obviously a manifestation of the early protection of legal interests. The purpose of criminalizing the dangerous behavior of major liability accidents is to "further strengthen the protection of the safety of workers' lives and maintain production safety"; and "clarifying the criminal responsibility for throwing objects from high altitudes and grabbing the steering wheel of buses is conducive to enhancing the public's awareness of the rule of law, enhancing the prevention and deterrent effect, and reducing and curbing the occurrence of such tragedies.". At this point, the criminal law punishes only the danger itself, not the consequence of the danger, because if the danger causes a "loss of actual value", it is treated as a crime of intentional injury, the crime of causing death by negligence and other crimes. For another example, the above-mentioned crime of infringement of trade secrets has changed from a result offender to a circumlocution offender, which reflects that it is not a consequence but an act-oriented crime, which is an important embodiment of the early protection of criminal law and legal benefits. The entire Amendment to the Criminal Law (XI) reflects the early protection of criminal law, that is, the enthusiasm of the positive preventive view of criminal law, in terms of new crimes and the revision and expansion of existing crimes.
In short, the legislation of the entire Criminal Law Amendment (XI) is strengthening the protection of collective legal interests, and fully realizing the early intervention of criminal law and the expansion of the scope of punishment through the preposition of legal benefit protection and the criminalization of abstract dangerous criminals, the expansion of property punishment and the aggravation of statutory punishments. With the continuous growth of various social risks, risk prevention has been gradually transformed into a preventive risk legislative governance strategy at the level of criminal law. At a time when criminal law increasingly uses dangerous offenders to protect collective legal interests, legislators must argue in detail the necessity of such collective legal interests being protected in criminal law, in particular, "there must be a theory of the necessity of criminal policy and the constitutional legitimacy of the protection of specific object legal interests through abstract dangerous offenders". When the criminal law regulates these new areas in a large number of dangerous ways, it has actually abandoned the classical criminal law derived from the idea of the rule of law, and has become a simple means of social control, and the criminal law is no longer a law to protect the interests of the law, but has been reduced to a tool for maintaining social stability. Legislation should appropriately limit the scope of criminal law and return to the "core criminal law".
Three
Rational reflection on the positive preventive criminal legislative concept of the Criminal Law Amendment (XI).
As a means of governance in response to risk societies, the active preventive view of criminal law is commonly used by legislators in various countries because of its convenience and appeasing function of people's emotions. Although criminal law is not the most effective means of social governance, criminal legislation is the most convenient means, because compared with other complex social governance measures, it is undoubtedly much easier to criminalize a certain behavior or modify and increase its statutory punishment; and it is also very easy for the public to realize the value of safety from new crimes and obtain emotional reassurance. Because of this, at present, our country, like Germany, Japan and other countries, is in a very active period of criminal legislation. However, when criminal law increasingly uses dangerous offenders to protect collective legal interests, legislators must argue in detail the need for such collective legal interests to be protected in criminal law, in particular, "the criminalization legislation of criminal law is the most important state act and must be justified". If the legitimacy of legislation is not fully explained, and the punishment itself may be contrary to the spirit of the protection of freedom and human rights in criminal law, legislators should reflect in a timely manner on the appropriateness of the positive preventive criminal law concept implemented in legislation.
On the one hand, it is necessary to reflect on the impact of the positive preventive criminal law concept on legal protectionism, in other words, if we adhere to legal protectionism, we should be vigilant and oppose the positive preventive criminal law concept, otherwise it will contradict itself.
The positive preventive view of criminal law dissolves the legal interests of the legal protectionists, and if the positive preventive view of criminal law is always upheld, it is better to give way to the position of legal interest theory to normative theory. The Criminal Law Amendment (XI) and the previous ten amendments to the Criminal Law are a reflection of China's active legislation in various countries, especially In Germany and Japan, in the risk society. Objectively speaking, China's criminal law has never established a negative or positive preventive view of criminal law. From the Criminal Law of 1979 to the Criminal Law of 1997, china's criminal law legislation has changed from rough to strict, the criminal circle has continued to expand, the punishment has become more and more early, and the concept of legal benefits has played a worse legislative role than the theory of social harm. As far as the protection of legal benefits is concerned, what kind of legal benefits are endangered by the crimes of violence endangering traffic safety, the crime of the danger of major liability accidents, and the crime of illegal debt collection? When there are no casualties and no property damage, how can the legal benefit be infringed? Criminal law is the last barrier to the rule of law, that is, it can only be considered as a last resort, and criminal law penalties must meet the requirements of necessity. Legal interests are substantive interests. Beccaria's theory of social damage holds that the intrinsic limits of criminal legislation are the damage of acts to society and that "the only and true yardstick by which crime is measured is the damage inflicted on the State". Only acts that are harmful to society can criminal law be defined as crimes, and the liberal concept of legal interests has thus acquired a normative theory superior to the theory of social defense and has become the basic concept of legal theology of criminal law. "The concept of legal interests, which was introduced into criminal law in order to prevent the undue expansion of the concept of crime and to ensure that certain citizens' freedoms are not interfered with by the state, has had liberal characteristics from the very beginning." If there is no physical or actual damage, only the abstract danger of snatching the steering wheel to public safety or the abstract risk of using violent debt collection to social order, etc., just as the extremely irregular criminal constituent elements of the crime of picking quarrels and provoking troubles and the extremely abstract legal benefits of social order are included in the scope of criminal law, it will only lead to the increasing abstraction and spiritualization of legal interests, and will make these new crimes of infringing on collective legal interests into new pocket crimes; if this trend is not curbed, A high degree of abstraction and spiritualization will eventually dissolve the concept of legal benefit itself, and make the concept of legal interest completely lose its function of restricting penal punishment. That being the case, scholars who advocate a positive preventive view of criminal law cannot in any way answer the question of why they advocate the protection of legal interests but have been dissolving the concept of legal benefits in violation of legal protectionism. It can be seen that the positive preventive view of criminal law and the protection of legal benefits are contradictory. Since it is necessary to advocate a positive preventive view of criminal law, it is better to directly replace the foundation of criminal law illegality from legal interests to normative theory, because new crimes established under the active preventive criminal law concept do not have to include personal damage or property loss, and the application of penalties under such a criminal law concept "is not only to deter hypothetical perpetrators, but also mainly to enhance the public's legal awareness through fair criminal law regulations and their strong and regular application, so that they can voluntarily obey and obey the law", And that's what normativeism is concerned with. If the legal theory is transformed into a normative theory, it can seek more space for the future development of a positive preventive view of criminal law. Because the violation of the norm itself does not emphasize the infringement of legal interests, but according to the violation of the norm to judge whether it is illegal, whether it is a dangerous criminal or a real offender, whether it is an abstract dangerous criminal or a specific dangerous criminal, as long as the criminal law norm is established, its violation can be regarded as a crime. Therefore, if we insist on the theory of legal benefits, although we cannot fully abide by the substantive legal benefits of classical criminal law, we must not continue to run wild on the road of abstract spiritual legal benefits, thus completely deviating from the original intention of the concept of legal benefits. Since the implementation of the current criminal law, the eleven amendments to the criminal law promulgated in China have taken the collective legal interests and the maintenance of social order as the highest value, although "all legal interests (including individual legal interests) cannot be only the interests of individuals or minorities, but their value should be observed in the public context or social connections", but, as pointed out by the German Federal Constitutional Court, "the Basic Law takes the protection of human dignity and freedom as the highest value of all laws", and the criminal law is the guarantee law of all sectoral laws. If we deviate from the original intention of this legal value and increasingly seek the protection of social order and public safety, this practice will actually reduce the criminal law to the civil law, administrative law, and other laws that are more responsible for maintaining social order; so what is the difference between the functions of criminal law and other departmental laws such as civil law and administrative law? Such an approach will eventually dissolve criminal law and obscure the hierarchical ladder of legal order in the principle of legal order unification, thus affecting the pace of modernization of the national governance system.
On the other hand, it is necessary to reflect on whether the positive preventive view of criminal law is too positive, in other words, if we adhere to the positive preventive criminal law concept, we should reflect on where the boundaries of positive prevention are and to what extent.
If it is believed that the continuous establishment of new crimes in the eleventh amendment to the Criminal Law in our country does not violate the principle of protection of legal interests, and thus still adheres to the positive preventive criminal law concept, then the next question is, where is the "positive" boundary of the positive preventive criminal law concept? Although scholars who hold a positive view of criminal law clearly point out that the positive view of criminal law is not the so-called radical view of criminal law, if the boundary of the positive preventive view of criminal law is not rationally set, then the positive view of criminal law and the radical view of criminal law are one step away, and even the current positive view of preventive criminal law may already be a radical view of criminal law. According to the legal theory of liberal criminal law and the normative theory of safe criminal law, the criterion for judging whether the positive preventive criminal law concept and the radical preventive criminal law concept should be whether the risk prevention is based on the continuous addition of dangerous criminals, if it is only rational and limited to increase the number of dangerous criminals, it is a positive preventive criminal law concept; if it is a continuous march on the legislative road of increasing dangerous criminals, it may be a radical preventive criminal law concept.
In order to prevent various risks in today's society, countries have been constantly revising their criminal laws. In the United States, "many new risk prevention offenders are developed every week, and they attract widespread attention at the same time", "the state has always prohibited any kind of behavior that is likely to cause direct harm", "but the result is that in order to protect people from new ways that may lead to the risk of harm, there is no restriction on how far the state can go", thus making the state interfere too actively and even radically in the name of maintaining social security and order. In Germany and Japan, symbolic criminal legislation is increasingly prolific in order to appease the public's uneasiness about risk invasion, and criminal legislation is in a fairly active state. In Germany, for example, changes in criminal law also reflect a focus on security, and criminal law legislation generally pre-empts criminal penalties. For example, chapter 28 of the German Penal Code, "Endangering public safety", stipulates not only a large number of intentional dangerous offenders, but also many negligent danger offenders, which increases the protection of public safety and the care of the public's psychology. At the same time, some scholars in theory believe that "the purpose of punishment can only be preventive, that is, it can only be to prevent future crimes." Since criminal law is a mechanism of social governance and social control, it can only pursue social goals, and the theory of retribution does not have social legitimacy. Because, in the theory of retribution, neither the punishment nor the extent of punishment have anything to do with social necessity." Increasingly, criminal law is becoming a tool for crime prevention rather than a weapon for restoring justice, leading to the neglect of the problem that "once criminal law no longer guarantees security and order, there is a danger that individual citizens will do justice without authorization and the strong will bully the weak with impunity". Take, for example, the crime of illegally collecting debts under article 293 of the Criminal Law, which is added to article 34 of the Criminal Law Amendment (XI), which stipulates: "In any of the following circumstances, the collection of illegal debts arising from usurious lending, etc., if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also be fined or fined individually: (1) using violence or coercion methods; (2) restricting the personal freedom of others or invading the residence of others; (3) intimidating, stalking or harassing others." The legislative intent of this article is said to be because "illegal debt collection may lead to intentional injury, illegal intrusion into homes, illegal detention and other criminal acts, often involving joint crimes and other issues, which makes it more difficult to deal with judicial practice", "in the criminal law, violence and 'soft violence' illegal debt collection are accurately characterized, which is conducive to severely punishing criminal acts, strengthening prior prevention, and reducing the possible infringement of victims.". However, such legislation could easily make criminal law a tool against the weak and defenders. In practice, there is a large market space for private lending, and the determination of the nature of usury is itself doubtful, and there are also doubts about what kind of debt is protected by law and what kind of debt is not protected by law. In this context, criminalizing the use of improper means to collect debts may mistakenly harm the interests of legitimate creditors; in other words, the establishment of the crime of illegal debt collection is likely to make the debt collection of rights protection be found to be tortious and then be found to be a crime. In the case of Hu Xinwu and others picking quarrels and provoking trouble, the court held that the defendant Hu Xinwu actually controlled and managed Shanghai XX Co., Ltd. (hereinafter referred to as "XX Company") in order to obtain illegal benefits, recruited and gathered defendant Wu Jun and others, acted as an "underground law enforcement team," intervened in civil economic disputes, and formed a criminal group of evil forces that illegally collected debts. However, in this case, the debts collected by Hu Xinwu were not illegal debts, and "the debt collection behavior of Hu Xinwu and others was based on legal debts and effective judgment documents", which was essentially different from the collection of illegal debts such as usury. The court found that Hu Xinwu and others constituted the crime of picking quarrels and provoking trouble based only on the illegality of the act itself, such as making noise at the victim's residence, blocking the door, installing a vehicle tracker on the victim's vehicle, and locking the direction of the car, which was obviously unfavorable to the protection of legitimate debts, especially after the illegal collection of debts was criminalized and criminalized, it was more likely to cause no attention to the legality or illegality of the debts, but only based on the illegality of the debt collection act itself, and then identify such acts as illegal debt collection crimes. In other words, the new crime of illegal debt collection may cause the scope of the crackdown on rights protection. At the same time, from the perspective of the act of illegally collecting debts, there is no essential difference between this crime and the crime of picking quarrels and provoking troubles, and in previous judicial practice, those who used improper means to collect legal debts have already been handled in accordance with the crime of picking quarrels and provoking troubles. That being the case, the addition of the crime of illegal debt collection is superfluous in itself. There are many people who do not repay debts, which has a huge relationship with the lack of integrity in Chinese society, and has led some creditors to take risks in order to protect their legitimate rights and interests. For another example, in the debt collection case of Zhang XX, in order to urge the owner of the Internet café Liu X to owe his debts, the defendant Zhang XX carried a liquefied gas tank weighing about 10 kilograms into Liu's house on a certain day, and after putting down the liquefied gas tank, he unscrewed the valve. The sound of liquefied gas leaking and the heavy smell of coal frightened everyone who was surfing the Internet. "I don't want to live, people who want to live hurry out!" Zhang Moumou shouted while closing the liquefied gas tank valve. Immediately afterward, Zhang Moumou unscrewed and closed the liquefied gas tank valve. The staff of the Internet café quickly called the boss Liu Mou, and soon the police arrived, and Zhang Moumou was immediately controlled. Later, Zhang Moumou was convicted and punished for the crime of picking quarrels and provoking troubles. However, the parties in such cases are also in order to safeguard their legitimate rights and interests. Zhang Moumou repeatedly asked the boss Liu Mou to urge the debt fruitless, Liu Mou as the owner of the Internet café itself also has the ability to repay but is not repaid for a long time, Zhang Mou mou was forced to make this decision, deliberately carrying the gas canister to the Internet café Where there are many people, the purpose is to force Liu to repay the money as soon as possible. Therefore, the essence of this kind of debt collection is not tortious acts but rights protection acts, "criminal judicial organs should be kind to debt collection, self-reliance, professional counterfeiting and other rights protection acts, even if these acts violate the provisions of civil law, administrative law and other laws, there are improper, ultra vires and other circumstances, can not easily pursue criminal responsibility", "from the perspective of criminal policy, often treat rights protection acts as crimes, will inevitably promote illegal and criminal acts." Although Mr. Zhang carried out the act of moving the gas canister to the Internet café and opening the gas canister to create a tense atmosphere in the process of rights protection, his behavior was generally measured, and Mr. Zhang has always rationally controlled his own behavior, and has not caused any infringement of legal interests, and "the interests of the rights defender are better than the interests of the other party, and the substantive conditions for improper rights protection acts to constitute crimes should be more stringent." From the perspective of substantive punishability, Zhang's behavior does not have any legal interest infringement worth punishing, and should not be subject to criminal punishment. The above-mentioned Hu X case and the Zhang X case here are both aimed at strengthening prior prevention, but they ignore that in the case of debt collection, even if the debt collection method is improper, the debt collector himself is also a victim, and the legitimate rights and interests of the debtor cannot be disregarded in order to protect the rights of the debtor being collected. Reflecting on an overly positive view of preventive criminal law can save people from the gross violations of criminal law; if it is allowed to remain so active, it means that "the legislator can actually punish all the acts he wants to punish". If criminal legislation is too biased in favor of debtors, it will stimulate a new round of social contradictions, and it will ultimately be difficult to achieve the positive crime prevention effect of criminal law. Although the crime of illegal debt collection stipulated in the Criminal Law Amendment (XI) is aimed at illegal debts, based on the long-term criminalization orientation of the Chinese judiciary, based on the previous practice of treating the collection of legal debts as a crime (the crime of picking quarrels and provoking troubles), and the position in practice that there is no concern about the nature of the debt itself but only concerns about the illegality of the debt collection itself, it is foreseeable that in future practice, the collection of legal debts will be convicted and punished according to the crime of picking quarrels and provoking troubles. The collection of illegal debts is convicted and punished in accordance with the crime of illegal debt collection, thus creating a situation in which the criminal law exhausts the use of improper means to collect debts. In other words, the establishment of this crime is nothing more than to make the application of the crime of picking quarrels and provoking troubles eliminate the form of the crime of collecting illegal debts. If the existence of the crime of picking quarrels and provoking troubles in the criminal law is enough to reflect on the problems of legislation in the field of "collective legal interests that have not been universally accepted for decades", the establishment of the crime of illegal debt collection will make the problem even more serious. The connotation of the crime of illegal debt collection is unclear and its extension is unclear, and it is highly overlapping with the existing crimes of picking quarrels and provoking troubles, illegal detention, and illegal intrusion into other people's homes in the criminal law, and its establishment will inevitably bring more inconsistent effects in the application of criminal law crimes.
In general, criminal legislation should reflect on its boundaries for overly aggressive crime prevention. "The idea of prevention yields very different results from the idea of retribution. If one regards punishment as a preventive measure for committing a crime, the question of human responsibility is fundamentally uncertain, since it depends only on the danger of the perpetrator and the hidden criminal desire of the public. "Criminal law cannot be a barometer of public desire, but rather a synonym for rationalism; otherwise, criminal legislation will increasingly deviate from pragmatism." The criminalization basis should reflect the spirit of the rule of law, and the ultimate intention of the criminal law legislation is to protect civil liberties and seek the happiness of citizens"; "The modern rule of law, as the most important rule of law in the governance of the country, is essentially good law and good governance. It not only integrates good law into the national system, lays the institutional foundation for adhering to and improving the system and realizing the modernization of the national governance system, but also aims to pursue good governance. "The criminal rule of law is the most important embodiment of the rule of law in the country, and it is also worth reflecting on whether too much positive preventive legislation fully reflects the fundamental purpose and requirement of the rule of law of good law and good governance."
Four
Conclusion
In today's world, all kinds of dangers are constantly occurring, and criminal law is a sharp weapon for preventing and managing risks, but it is not a good medicine to curb dangers, nor is it a powerful weapon for preventing crime. In order to pursue effective risk prevention, the protection of legal interests in criminal law is becoming more and more early and abstract, the tradition of protecting individual legal interests is increasingly shifting to the protection of collective legal interests, and the constituent elements are becoming more and more prepositioned and expanded, however, all "such preposition constituent elements will not be described very precisely", and the applicators of the law will inevitably embark on the road of relying on judicial interpretation and taking criminal policy as the orientation to determine the scope of protection of collective legal interests. However, such an approach is bound to replace the statutory purpose of "protecting collective legal interests", which constitutes a constituent element, with the purpose of criminal policy (applicable to the law), which cannot provide inherent normative limits for the pursuit of applying criminal law to preventive purposes, and can easily lead to the arbitrary expansion of the scope of protection of collective legal interests and even the scope of punishment under criminal law. The criminalization of all kinds of illegal acts will also make prisons increasingly overcrowded, judicial costs will be infinitely increased, and "human beings' right to impunity" will be difficult to guarantee. "With the change of the times and the development of society, the materialization of criminal law has become increasingly prominent. The materialization of criminal law is the result of the evolution of society from an industrial society to a risk society. "The Criminal Law Amendment (XI) is a legislative practice of a positive preventive view of criminal law and a further embodiment of the materialization of criminal law. In the future, China's criminal legislation should reflect on the positive preventive criminal law concept, and prevent it from evolving into a radical criminal law concept, and prevent the intensification of the materialization of criminal law; criminal legislation should uphold rationalism and abide by the boundaries of the core criminal law, so as to prevent the ever-expanding scope of criminal law punishment from eventually destroying the authority of the criminal law itself.
This paper is the funding result of southeast university's 2020 central basic business expense project "Research on the Rule of Law Guarantee System for Chinese Rights" (2242020S30046), as well as the funding results of Southeast University's Anti-Corruption Rule of Law Research Center and Jiangsu University's "Qinglan Project".
Source: Quiet LawMan