법치국가에서의 안전지향형법에 대한 비판적 고찰

Abstract

In risk society feels the public floating but intensive psychological anxiety about various social hazards and on the grounds of this requires the state intensive measures for defusion of his anxiety. Therefore devises the state populistic and impromptu measures for build of safe society and according to this puts criminal law as means of criminal policy by priority and active. This is called ‘safety-aiming criminal law’. But social hazards as elements of anxiety in risk society are obscure, immense and irrelevant to individual. Immediate causes of this psychological anxiety are social disorganization, collapse of norms, isolation, not-solidarity, etc. from complexity and segmentalization of society. So, it is very important to build social safety net for decrease of thess elements of anxiety, to prevent and control social hazards effectively. Social policy as safety policy is the right measure for this. Also in risk society is still concept of constitutional state valid, so must be maintained and developed. So, intentionally must not be given up or ignored freedom-guaranteeing principles which are fundamental principles of criminal law in constitutional state. However, prefield-criminalization, symbolization and politicalization of criminal law, reinforcement of criminal sanctions, etc. which are main features of safety-aiming criminal law, ignore or give up guarantee of freedom and protection of fundamental rights only under the name of prevention of social hazards and safety of society. It is also tendency of enemy-criminal law. Consequently degenerate criminal law into a political instrument and only a symbol. This result incapacitates criminal law or brings about loss of trust in criminal law and thus plunges criminal law rather into crisis. Therefore must be remembered fundamental principles of criminal law in constitutional state and maxim such as “good social policy is the best criminal policy“ also in safety policy to prevent and control social hazards effectively and build safe society. In this sense must be changed reckless and impromptu criminal policy in adecisive manner into social policy as appropriate political measure which is able to guarantee and protect freedom and fundamental rights of citizen and at the same time retain efficiency to some degree.