Abstract

In recent years，the emergence and spread of new non-traditional security threats such as terrorism，cyber crime，environmental pollution，financial risk and major infectious diseases，etc.not only greatly stimulates the nerve of social public security，causing insecurity spread in the whole society，but also brings huge challenge to the modern transformation of national governance system and governance capacity.Under the background that public security demands constantly improves as well as the difficulty of social governance continues to increase，risk governance and risk allocation become new topics in public decision-making，a concept of risk governance with “prevention” as its core is being accepted and strengthened，which has created strong pressure in the field of national governance.The state has to actively use all means to preventively treat non-traditional security threats in order to achieve the purpose of maintaining social order and ensuring public safety.Affected by this，criminal law is being an important means of social governance，and risk-prevention-oriented preventive criminalization legislation is also being accepted and practiced in various countries.China is no exception.In the recent amendments to the criminal law represented by the Criminal Law Amendment（Ⅷ）and the Criminal Law Amendment（Ⅸ），the regulations on terrorist crimes and cyber crimes have shown obvious preventive characteristics and trends.

Preventive criminalization is a legislative model based on the need to prevent special risks in which legislators treat certain risk behaviors that were not crimes in the past as a crime.From the perspective of its standard structure，it shows the characteristics of preliminarily intervening borders，abstracting protection of legal interests，and enlarging the scope of punishment.In terms of types，it mainly includes preparatory offenses，dangerous offenses，cumulative offenses，possession offenses and obligatory offenses.Examining China's criminal law legislation，preventive criminalization is manifested in the text paradigm as early legal protection，implementation of preliminary actions，perpetration of accomplice，and the strengthening of cooperation obligations.In the logic of generation，the actual prevention tilts towards hazard control，the core behavior expands to the marginal behavior，ex post punishment goes to ex ante prevention，and illegal conversion of behavior transforms to subject.Although preventive criminalization has realistic necessity and historical necessity in the context of risk society，it is an important manifestation of the self-renovation of criminal law and active adaptation to social development，it still represents an expanding legislative model.It is essentially the expansion of the state's penal power and the reduction of civil rights.There is potential risks that excessive advance intervention exacerbates the thinning of protective legal benefits，symbolization of criminal law legislation caused by blind public opinion，inflated instrumentalism leads to imbalances in security and freedom，and hasty convictions have blurred the boundaries of criminal law.

It is undeniable that，in the context of the continued spread of non-traditional security threats，preventive criminalization legislation can better meet the public's security expectations and the state's risk governance needs.It is a policy need for the implementation of overall national security thinking，reality concerning about legal benefit protection of risky social security，the orientation of social governance in criminal law，and the normative path for the rational expansion of modern criminal law legislation，which has certain legitimacy.However，it is worth noting that the extended nature of the preventive criminalization legislation makes its legitimacy extremely fragile，and it faces crisis such as the dilution of conduct in criminal law，weakening elements of criminal responsibility，vagueness of the protection legal benefits of criminal law，and softening of the rigid boundary of criminal law.If it is not restricted reasonably and necessarily，allowing it to expand indefinitely and endlessly，it will erode the citizens' freedom and make the criminal law functionally reduce to the “police law” that governs everything，instead of being based on the “protection law” that has been strictly absent from the expansion of penal powers.

Therefore，in order to control the potential risk of preventive criminalization legislation，maintain its legitimacy，and thus avoid risk regulation as a new institutional risk，it is necessary to establish a reasonable limit on preventive criminalization from the perspective of scientific legislation.Specifically，we should adhere to the concepts of the expansion of responsibility criminal law to safety criminal law，transition from suppression criminal law to standardized criminal law，and extension of penal law to preventive criminal law；adhere to the standpoint of moderation and legal protection of criminal law；adhere to the principle of justification purpose，reasonable means，appropriate intervention，and scientificity and normativeness；and adhere to the standards of the relevance of legal interest protection，constitutional proportionality，substantive illegality of conduct，and complementarity of criminal law intervention.In addition，it is necessary to ensure that these limits are achieved by strengthening the scientific structure of preventive criminal law norms，systematic evaluation of preventive criminalization legislation，rational response to the public opinion on preventive incrimination，and reasonably limitations on the application of preventive norms.

Keywords：non-traditional security threats；national governance；preventive criminalization；criminal law legislation；scientific legislation