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鸟尔里希·贝克的“风险社会”概念虽经劳尔、斯宾万格等人的发展也未能达到明确,且尚未完全被接受为法学研究的基础。人们基于预防新型风险的需要,提出了“风险社会的刑法”理论。较之于公法领域,“风险社会”概念在私法领域已经作为一个重要的注解概念得以确立。而许多刑法学者则理性地认识到“风险社会的刑法”本身所存在的风险并反对通过刑法来掌控与解决风险,认为该理论意味着传统的教义学框架在法治国家的最大程度的灵活化。通过对产品责任领域的“皮革喷雾剂案”的分析,笔者认为该判决并非“风险刑法”之征兆,刑法也并非不可避免地要对“风险社会”做出回应。
Although the concept of “risk society” by Birdrich Baker fails to reach a definite goal through the development of Raul and Spencer Wange, it has not yet been fully accepted as the basis for the study of law. Based on the need to prevent new types of risks, people put forward the theory of criminal law of risk society. Compared with the field of public law, the concept of “risk society” has been established as an important concept of annotation in the field of private law. However, many criminal law scholars rationally recognize the risks inherent in the “criminal law of risk society” and oppose the control and settlement of risks through criminal law. They think that this theory means the maximum flexibility of the traditional doctrinal framework in the rule of law countries The Through the analysis of Leather Spray Case in the field of product liability, the author believes that the judgment is not a sign of “risk criminal law”, and criminal law does not inevitably respond to “risk society.”