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伯纳德.哈考特在《危害性原则的崩溃》一文中提出,危害性原则在不断扩张的同时也失去了其自由保障机能,正处于崩溃状态。劳东燕通过对中国现状的考察,写成《危害性原则的当代命运》一文,指出在中国刑事司法日益政治化,危害性原则正陷入困境。实际上,危害性原则崩溃的本质在于国家权力凭借风险控制的正当理由不断蚕食公民自由,问题的关键仍在于如何处理公共政策同刑法基本原则的关系。实体法意义上的标准难以客观化,外部的法制构建也许更有建设性意义。
In his article “The Collapse of the Principle of Harmfulness,” Bernard Hackett pointed out that the principle of danger has been collapsing because it has constantly expanded while losing its freedom of protection. Through his investigation of the status quo in China, Laodong Yan wrote his article “The Destiny of the Destiny of Harmful Principles,” pointing out that the increasingly politicized and dangerous principles of criminal justice in China are now in a dilemma. In fact, the crux of the principle of danger is that the state power keeps encroaching upon civil liberties due to justified risk control. The crux of the issue lies in how to deal with the relationship between public policies and the basic principles of criminal law. The standards in the substantive law are difficult to be objectified and the construction of the external legal system may be more constructive.