轻罪治理模式的概念与正当性研究

Research on the Concept and Legitimacy of Misdemeanor Governance Model

摘要: 为了应对社会风险增加，民众的社会吁求也从自由转向安全，从而推动了刑法领域中积极的立法理念以及轻罪增设的立法实践。其中，轻罪增设的目的不仅是为了实现积极立法的趋向，还有平衡传统刑法理念下厉而不严的重刑主义的立法结构。但是这一立法模式并没有在学界取得一致的认可，其在范围界定上以及合理性根据上均处于讨论中，而二者又均为轻罪治理模式的前提性基础，因此有必要进一步加以厘清，从规范目的入手，提出宣告刑说的合理性，并综合理论与实践两个层面，为轻罪模式的合理性提供依据。

Abstract: In order to cope with the increase of social risks, the public’s social appeal has also shifted from freedom to security, thus promoting the positive legislative concept in the field of criminal law and the legislative practice of adding misdemeanors. Among them, the purpose of adding misdemeanor is not only to realize the trend of active legislation, but also to balance the legislative structure of severe but not severe punishment under the traditional criminal law concept. However, this legislative model has not been unanimously recognized in the academic community. Its scope definition and rationality are in discussion, and both are the prerequisite basis for the misdemeanor governance model. Therefore, it is necessary to further clarify it. Starting from the normative purpose, the rationality of the declaration of punishment is proposed; it also integrates the two levels of theory and practice to provide a basis for the rationality of the misdemeanor model.