Criminal Law in a Risk Society (Second Edition).
Written by Lao Dongyan
Published by Peking University Press in December 2023.
l New construction of criminal law response theory in the context of risk society.
l Newly revised, concise language, focused topics, distinctive style.
l Integrate the two research paradigms of legal doctrine and social science law.
l Through the analysis of the basic criminal law system, in-depth interpretation of specific practical issues.
Preamble (excerpt).
It has been eight years since its publication in 2015, and while it has attracted the attention of criminal law scholars, it has also received some criticism. These concerns and criticisms are a great encouragement to me. Both praise and criticism show that the relevant research and conclusions of this book are taken seriously, and it helps me to reflect on the corresponding content in the book.
On the occasion of this republication, it is necessary to clarify three aspects of the issue.
First of all, the core proposition of this book is how to adapt criminal law theory to changes in the external environment with the advent of the risk society. To a considerable extent, the book is more concerned with how the theory of criminal law is changing, although in some parts it also expresses a preliminary position on how it should be changed. This means that there is a clear distinction between what is and what should be. From the description or outline of the changes in the basic principles and basic concepts of criminal law in the book, it cannot be inferred that I agree with such changes in their entirety. At the time of the publication of this book, due to the lack of mature insights into how many of these theories should be developed, the focus of the discussion was more on how and why changes occurred, and how the relevant criminal law theories should be selected for development in a blank space. Such blank space can be misleading, and in fact has been the cause of much criticism of the criminal law theory of risk that I advocate.
Since the early days of related research, I have realized that the development of criminal law theory in the direction of policy and prevention has shown an inevitable aspect because it has a realistic social basis, and on the other hand, the inherent dangers of such development have always been worrying. I made this clear in my 2007 article "Public Policy and Criminal Law in a Risk Society" (Chinese Social Sciences, No. 3, 2007). It is only because of the limitations of my energy that for a long time after that, I did not make any further comments on how to control the dangers of preventive criminal law.
Second, there is a close intrinsic connection between this book and my subsequent research on criminal policy and functionalism. It can be said that this book and my subsequent research have always adhered to the main line, that is, how criminal law, as an integral part of the legal system, can reasonably play its social function. This also makes my corresponding research, even if it involves the doctrinal construction of specific sins, often consider it from the perspective of social governance.
If it is recognized that the theory of criminal law needs to be adjusted according to the changes in the external environment, then how to anchor the direction of the theoretical development of the criminal law doctrinal system and related fields, and provide processing and support for such adjustment, is a proposition that needs to be further developed. Based on this, after completing the research of this book, I spent a lot of time and energy thinking about how to construct a development mechanism that can achieve self-evolution within the system of criminal law doctrine. The relevant research in this area can be roughly divided into two parts, namely, how to complete the transformation of the criminal law interpretation theory and how to realize the theoretical reconstruction at the level of the criminological system, in order to provide necessary support for the adaptive adjustment of the entire criminal law system. For the part on the interpretation of criminal law, the corresponding research results have been collected in the book "Functionalist Interpretation of Criminal Law" (Chinese University Press, 2020 edition). In this book, I try to provide a basic framework on how to control the dangers inherent in the functionalization and substantiation of criminal law interpretation while promoting the adaptive adjustment of criminal law interpretation theory. It is also a response to the dangers of preventative criminal law. The section on the criminological system, which is still unfinished and is expected to be published in a collection in the next two years, is tentatively titled "The Functionalist System of Criminal Law" (or "The Functionalist Theory of Criminal Law").
Finally, the changes made in the new edition of this book compared to the old edition are mainly in the addition of four chapters, the adjustment of the order of individual chapters, and the corresponding treatment of some specific discussions. The shortcomings of the old version are that the content is not complete enough, and there are obvious deficiencies in the system. The revision mainly does three aspects of work: First, four chapters have been added, namely Chapter 3 "Construction of the Resilience Mechanism of the Criminal Law System", Chapter 5 "Examination and Reflection on the Theory of Risk Criminal Law", Chapter 11 "Reflection and Reconstruction of the Theory of Foreseeable Possibility in the Case of Negligence", and Chapter 12 "Justification and Application of the Reconstruction of the Theory of Negligence". Second, the order of individual chapters has been adjusted. Chapter 5 of the old edition "Factual Causal and Objective Result Attribution" is divided into two chapters, namely Chapter 7 of the new edition "Types of Factual Causal and Consequential Attribution" and Chapter 8 "The Typology of Result Attribution Theory".At the same time, the chapters in the old edition dealing with the dispute between subjective and objective and the chapters dealing with the theory of attempted offenders have been replaced. Third, the titles of some chapters have been reformulated, and corresponding treatments have been made in specific discussions, including but not limited to adjustments due to amendments to legislation or judicial interpretations.
The idea of revising the book began in 2020. The three years of the pandemic have changed a lot, including the state of mind of individuals, and it has also delayed the revision of the book. Fortunately, the epidemic has finally ended, and the revision work has finally come to an end. Here, I would like to thank the doctoral students I supervised, Tao Qiulin and Li Yu, for their help in the revision process. ......
Lao Dongyan. June 26, 2023.
Lao Dongyan.
A native of Shaoxing, Zhejiang, he is a doctor of law from Peking University, a professor and doctoral supervisor of the dean of Tsinghua University, and an executive director of the Chinese Criminal Law Society. His main research area is criminal law. He has published monographs such as "Criminal Law in a Risk Society", "Functionalist Criminal Law Interpretation", and "The Narrative of the Rule of Law in the Localization of Criminal Law", and has published more than 90 articles in professional journals such as "Chinese Social Sciences", "Chinese Law", "Legal Research", and "Chinese and Foreign Law".
Table of Contents
Introduction. Part I: Macro Thinking on Criminal Law Theory in Risk Society.
Chapter I: The Risk Society and the Preventive Criminal Law System.
Section 1: Risk Landscapes in a Risk Society.
Section 2 Social Transformation and Risk Society Theory.
Section 3 "Risk" in the Theory of Risk Society
Section 4: The Rise of the Preventive Criminal Law System.
Section 5 Summary of this chapter.
Chapter II: An Overview of the Evolution of the Criminal Law System.
Section 1: The Crisis of Criminal Law Theory in a Risk Society.
Section 2: The Contemporary Changes and Dilemmas of the Theory of Legal Benefits.
Section 3: Structural Transmutation of the Basis of Criminal Responsibility.
Section 4: Doctrinal theories that have been implicitly reconstructed.
Section 5 Summary of this chapter.
Chapter III: Establishment of Resilience Mechanisms in the Criminal Law System.
Section 1: Policy as a structural element of the criminal law system.
Section 2: The Basic Functions of Policies and the Politicization of Criminal Law.
Section 3: Forging the adaptability of the criminal law with the help of institutional technology.
Section 4: The adaptability of constructing a system through the interpretation of the Criminal Law.
Section 5 Summary of this chapter.
Chapter IV: The Position and Choice of Risk Criminal Law Theory.
Section 1: Preventing the comprehensive erosion of liberal criminal law by criminal law.
Section 2: Research Approaches and Positions on Risk Criminal Law Theory.
Section 3: Implementing Restraints on Preventive Criminal Law with the Aid of Principles.
Section 4 Summary of this chapter.
Chapter V: Examination and Reflection on the Theory of Risk Criminal Law.
Section 1: The Significance of Risk Criminal Law Theory to the Criminal Law System.
Section 2: Reflections on the Research Paradigm of Risk Criminal Law Theory.
Section 3: Realize the communication between social theory and criminal law theory.
Section 4: How is it possible to systematize the theory of risk criminal law.
Section 5 Summary of this chapter.
Part II: The specific development of criminal law theory in the risk society.
Chapter VI: Causal Relationship between Risk Allocation and Criminal Law.
Section 1: Risk Allocation and Judgment of Attribution of Responsibility in the Criminal Law.
Section 2: Normative Reflection on Causation in Criminal Law.
Section 3: Three pairs of categories in criminal law causation.
Section 4 Summary of this chapter.
Chapter VII: Types of Factual, Causal and Consequential Attribution.
Section 1: Problems with the "Attribution-Blame" Dichotomy Framework.
Section 2: Types of Result Attribution in Traditional Criminal Law Theory.
Section 3 The Rise of Probability-Enhancing Outcome Attribution Theory.
Section 4 Summary of this chapter.
Chapter 8 The Typology of Outcome Attribution Theory.
Section 1: Paradigm Shift and Typological Thinking in Attribution Theory.
Section 2: Normative Interpretations of Different Types of Attribution of Results.
Section 3: The Application of Each Type of Attribution in Practical Cases.
Section 4: Exploring the standards for judging factual causality in the Criminal Law.
Section 5 Summary of this chapter.
Chapter IX: Reflections and Prospects on the Theory of Criminal Intent.
Section 1: Whether the volitional factor has independent value.
Section 2: Whether intentionality is equivalent to cognizant sin.
Section 3: The Transformation from Result-based to Behavior-based.
Section 4 Summary of this chapter.
Chapter X: Models for the Analysis of the Elements of Criminal Intent.
Section 1: Commentary on the four main theories at present.
Section 2: Formula Expressions of Intentional Designation Standards.
Section 3: Criminal Intent Genealogy Tables and Their Explanations.
Section 4: Analysis of the Elements of Intent and Their Application.
Section 5 Summary of this chapter.
Chapter 11 Reflection and Reconstruction of the Theory of Foreseeable Possibility in Negligent Crimes.
Section 1: Why we attach importance to the concrete possibility of foreseeing outcomes.
Section 2: Functional Defects of the Liability Mechanism of the Traditional Theory of Negligence.
Section 3 The New Position of Foresight Possibility in the Construction of Negligence.
Section 4 Summary of this chapter.
Chapter 12 The Justification and Application of the Reconstruction of the Theory of Negligence.
Section 1: The Possibility of Foresight after Reconstruction and Self-Accountability in Criminal Law.
Section 2 The foresight possibility after reconstruction meets the requirements of the responsibility doctrine.
Section 3: Differentiated Handling of Foreseeable Possibilities and Cases of Criminal Negligence.
Section 4 Summary of this chapter.
Chapter 13 The Functional Transformation and Practical Dilemma of the Principle of Harmfulness.
Section 1: Risk Control and Criminal Law Hazard Assessment.
Section 2: Fission of the connotation of the concept of harm in criminal law.
Section 3: Transformation of the basic functions of the principle of harmfulness.
Section 4: The Criminal Law Dilemma Behind the Principle of Harmfulness.
Section 5 Summary of this chapter.
Chapter 14 Subjective and Objective Disputes and Typological Interpretations.
Section 1: The Evolution of the Criminal Law in the Early Stages of the Criminal Law.
Section 2: Contemporary Developments in Criminal Law.
Section 3: Interpretation of the types of non-** in the Criminal Law.
Section 4: Investigation of the Chinese Chinese Language Context without Subjective and Objective Disputes.
Section 5 Summary of this chapter.
Chapter XV: The Theory of Initiation and the Basis for the Establishment of Wrongfulness in Criminal Law.
Section 1: The Purpose of Punishment and the Theory of Initiation in Attempts.
Section 2: The Trend of the Theory of Attempted Criminals in Contemporary Times.
Section 3: The basis for establishing harmful results and illegality in the Criminal Law.
Section 4: Reflection and Summary of the Theory of Initiation in Attempted Crimes.
Section 5: The Social Background and Dangers of the Flourishing of the Subjective Attempt Theory.
Section 6 Summary of the Chapter.
Chapter 16: The Fission of Meaning and the Normative Reconstruction of the Theory of Culpability.
Section 1: Between the Theory of Normative Responsibility and the Theory of Expected Possibility.
Section 2: The Objectification of Culpability and the Expectation of the Fate of Possibility.
Section 3: The Socialization of Culpability and the Reconstruction of the Theory of Normative Responsibility.
Section 4 Summary of this chapter.
Chapter XVII: The Root Cause of the Problem of Awareness of Illegality**.
Section 1: "Ignorance of the law does not exempt from liability" in the context of mainland French
Section 2: "Ignorance of the law does not exempt from liability" in the context of ordinary French
Section 3: The Presumption of Knowledge of the Law and the Rationalization of Governance Methods.
Section 4: Commentary on the Theoretical Basis of "Ignorance of the Law Does Not Exempt from Responsibility".
Section 5: Exploration of the Reasons for the Emergence of Problems in the Perception of Illegality.
Section 6 Summary of the Chapter.
Chapter 18 Responsibility Doctrine and Illegality Cognition.
Section 1: The Responsibility-Oriented Nature of the Problem of Awareness of Illegality.
Section 2: The Dilemma of Responsibilityism Behind the Perception of Illegality.
Section 3: Between the Risk Regulation of the Criminal Law and the Doctrine of Responsibility.
Section 4: Reflection on the Recognition of the Illegality of China's Practice.
Section 5 Summary of this chapter.
Primary references.
Postscript: Ten years in retrospect.
Criminal Law in a Risk Society (Second Edition).
Eight years of new revisions to reconstruct the theory of risk criminal law
At present, China has involuntarily placed itself in a global risk society, which has to face and deal with many new social problems, and criminal law, as an integral part of the social governance system, is facing a major issue of how to adapt to the times. Unlike other risk criminal law theories that only focus on local or specific areas, this book takes the risk society as the background to examine how the drastic changes in the external social environment have a comprehensive impact on the basic theory of criminal law.
The first part of the book aims to comprehensively outline and describe the important changes that the criminal law system has undergone at the macro level, analyze the common nature of these changes, and try to reveal the social roots that have contributed to these changes. The second part is a thematic **, arranged in the order of the hierarchy system, starting from the basic concepts or systems such as causality and result attribution, intentionality, negligence, harm, illegality, criminal responsibility and illegality cognition, and sorting out the evolution and impact consequences it has experienced in a single line.
On the basis of the original edition, this book has been greatly revised, making the topics more concentrated, the language more concise, and the style more distinct, comprehensively and deeply cleaning up the significant impact of the risk social nature of modern society on the construction of criminal law theory.