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一、刑法本质中道德谴责功能的应然属性在我国,刑法的本质长期以来被简单地理解为犯罪的本质。导致这种情况出现的原因固然可能与刑法学界长期以来区分犯罪与刑罚~②,同时重视犯罪论、轻视刑罚论的研究习惯有关~①,但更为深刻的原因在于我国传统刑法研究范式具有仅仅关注其自身的局限性。但近些年,随着侵权法、行政处罚法等相关法律的出台与完善,研究、建构刑法的传统话语背景已经改变了。特别是风险社会语境下,刑法着重
First, the essence of the nature of criminal law should condemn the function of moral nature In our country, the nature of criminal law has long been simply understood as the essence of crime. The reason that causes this kind of situation may of course be distinguished from the criminal law academic circle for a long time in distinguishing crimes and penalties from those in the criminal law circle. 2 At the same time, emphasis is placed on the criminal theory and the negligence of the study habits of criminal theory. However, the deeper reason is that our traditional criminal law research paradigm has only Focus on its own limitations. However, in recent years, with the promulgation and perfection of relevant laws such as tort law and administrative punishment law, the traditional discourse background of studying and constructing criminal law has been changed. Especially in the context of risk society, criminal law focuses