（西南政法大学 法学院，重庆 401120）
Rational restriction of positive criminal legislation: implantation of the principle of proportion
Chen Wei,Li Xiao
(Law School, Southwest University of Political Science and Law, Chongqing 401120,China)
Abstract: in recent years, China's criminal law legislative amendment has shown a significant trend of prevention, functionalization and responsiveness, reflecting the current China's criminal law, based on the social reality of China's transformation, pursues the proactive legislative orientation of prevention of infringement of legal interests in advance and timely concern for people's livelihood interests. The positive criminal legislation is the product of the social needs in line with the spirit of the times, but it implies the risk of the rule of law that will erode the protection of freedom, blur the boundary of criminal law intervention and cover up the actual effect of law if it is not restricted. In the face of the impact and challenge of globalization, the externality of the state's penalty power has been stimulated, and the modesty of criminal law, the principle of legal interest and the principle of responsibility that the classical criminal law theory insists on have almost been comprehensively reformed. Through the investigation and progressive judgment of the three sub principles of proportionality, necessity and balance, on the one hand, it can provide a relatively objective and clear examination standard for the establishment of the reasonable boundary of the positive criminal legislation, on the other hand, it can guarantee that the criminal law always operates within the control scope of the constitutional spirit and its value principles with its higher rank effect, so as to To achieve the optimal goal of criminal law participating in social governance.
Key words:Positive criminal legislation；Legal risk ；Classical theory of criminal law；Constraint dilemma；Principle of proportionality