关键词: 轻罪, 出罪机制, 谦抑主义, 消极刑法观, 程序出罪

Abstract:

Misdemeanor legislation fundamentally promotes major changes in the criminal structure, and constructing a mechanism of decriminalization for the special attributes of misdemeanors is the core issue to adapting to the modernization of crime governance. It is important to seek legislative solutions to solve problems, but it is even more critical to respect reality and explore existing normative systems. Since the current misdemeanor legislation has been formed, it is necessary to rationally realize that the promotion of the establishment of the mechanism of decriminalization of misdemeanors is supported by firm policy logic, sufficient practical logic, and internal theoretical logic. Therefore, in terms of governance concepts, it is necessary to complete the transformation from positive justice to negative justice, from guilt thinking to not-guilt thinking; in terms of substantive norms, we shall activate the existing normative crime function, and strengthen the role of rules such as saving clause and conviction but Exemption from Punishment causes in the governance of misdemeanors; in terms of procedural settings, we shall take the reform of the existing system as an opportunity to deeply explore the value of independent decriminalization such as discretionary non-prosecution.

Key words: misdemeanor, the mechanism of decriminalization, modesty, the negative concept of criminal law, procedural decriminalization