近年来，我国刑事犯罪结构发生了根本性的变化，由重罪结构转变为轻罪结构。严重暴力犯罪锐减，轻型犯罪大幅上升。在积极刑法观的指导下，刑事立法呈积极态势，轻罪罪名不断增多，刑法积极参与社会治理的力度不断加大。轻罪立法对社会治理确实具有积极意义，但刑法只是社会治理中的重要一环而不是全部，一味地将社会治理的任务交由刑法来完成，势必会产生负面影响。对刑法本身而言，过度参与社会治理，将会违背刑法的谦抑性，且当刑法不再作为社会治理的最后手段而是逐步担起社会管理法的角色，其权威性和稳定性也会在一定程度上被削弱。对社会治理而言，将本该由其他法律规范或社会规范调整的行为纳入刑法范围，将会导致社会治理的过度刑法化，其他法律规范及社会规范被空置，且单凭刑法不可能完全覆盖社会中的不法行为，社会治理效果并不理想。本文认为，轻罪治理不应过度依赖刑法，应采取非刑法立法方式，完善保安处分制度，设立保安处分法，实现对轻微犯罪行为的规制，既填补了劳教制度废除后的处罚空白，又避免了刑罚惩罚的过度化，实现良好的社会治理效果。
本文除绪论外，共分为三个部分：
第一部分，我国轻罪治理的理论展开。这一部分主要介绍了犯罪分层理论的发展与实践、我国轻罪界定标准的争议以及我国轻罪治理的刑事政策基础。在对域外犯罪分层立法考察的基础上，分析我国当前轻重罪划分的争议观点，最终得出采纳“法定刑3年说”为标准来界分轻重犯罪更符合我国国情。在讨论轻罪治理的问题与立法路径之前，有必要厘清上述轻罪相关的理论问题，为后续讨论奠定基础。
第二部分，我国轻罪治理的问题与反思。当前我国轻罪不断扩张导致刑事法律体系存在的问题凸显。在立法层面，轻罪扩张导致刑罚惩罚的过度化，刑法从适用范围、适用对象等方面对社会治理的过度参与将导致国家司法资源的浪费、人权保障与社会秩序之间的矛盾加剧，进而破坏刑法自身的稳定性和权威性。在刑罚制度层面，轻罪的扩张与传统二元制裁体系之间存在矛盾，具体的刑罚制度适用问题也逐渐凸显出来，例如对短期自由刑的过度依赖，对罚金刑规定的缺失等。另外，我国刑法中并未规定前科消灭制度，轻罪的出罪机制也并不完善，这就导致轻罪的前科及附随后果影响广泛且过于严苛。
第三部分，我国轻罪治理的立法路径选择。这部分主要探讨我国轻罪治理的两条可能路径，一是采用刑法立法方式，降低犯罪门槛，继续扩大犯罪圈，通过建立漏斗型司法体制，构建前科消灭制度及轻微犯罪的刑罚制度以实现对轻罪的治理；二是继续维持违法与犯罪相区分的二元制裁体系，通过非刑法立法方式，设立保安处分法，实现对轻罪的治理。本文赞同后者，并通过对比不同路径及立法模式的优劣之处，探讨设立保安处分法的优势及可能性。

In recent years, there has been a fundamental change in the structure of criminal offenses in our country, shifting from a structure dominated by serious crimes to one characterized by minor offenses. Violent crimes have significantly decreased, while minor offenses have seen a substantial increase. Under the positive outlook on criminal law, our criminal legislation has taken on a proactive trend, with an increasing number of minor offense charges, and the criminal law is becoming more actively involved in social governance. Legislation on minor offenses does prove to be significant for social governance. However, as but a part of social governance, criminal law cannot handle the entirety of its tasks, doing so would only lead to negative results.
From the perspective of criminal law itself, excessive involvement in social governance would violate the principle of modesty inherent in it. Furthermore, if criminal law transitions from being the last resort in social governance to assuming the role of social management law, its authority and rigor will inevitably be diminished. From a social governance perspective, incorporating behaviors that should be regulated by other laws and social norms into the scope of criminal law will lead to overcriminalization, which would then sideline other legal and social norms. It is impossible for criminal law to encompass all illegal behaviors in reality, and a social governance model that expects so will not produce ideal outcomes.
This article argues that the governance of minor offenses should not overly rely on criminal law. Instead, a non-criminal legislative approach should be adopted. To control minor criminal acts, a Security Measures Law should be made to establish a system of security measures. This would fill the void left by the abolition of the system of re-education through labor, preventing overcriminalization, and ultimately achieving effective social governance.
This article is mainly divided into the following three parts:
The first part discusses the theoretical development of minor offense control in China. It primarily introduces the evolution and practice of the theory of hierarchy of crimes, the debate over the criteria for defining minor offenses in China, and the background for minor offense control in China. Based on the observation of foreign legislation on the same issue, this section analyzes the current controversies over the classification of minor and serious crimes in China and concludes that defining minor offenses with “a maximum penalty of three years of fixed-term imprisonment” is more in line with China’s national conditions. Before delving into the issues and legislative pathways of minor offense control, it is necessary to clarify the aforementioned theoretical issues related to minor offenses to lay the groundwork for subsequent discussions.
The second part addresses the problems and reflections on minor offense control in China. The continuous expansion of minor offenses in China has led to prominent issues within our system of criminal law. At the legislative level, the expansion of minor offenses has led to an over-emphasis on punitive measures, causing the criminal law to over-participate in social governance in terms of scope and targets. This over-involvement results in the waste of judicial resources, exacerbates the contradiction between human rights protection and social order, and ultimately undermines the stability and authority of the criminal law itself. At the level of the penal system, the expansion of minor offenses is in conflict with the traditional binary punishment system, and specific issues concerning the application of criminal punishment system are becoming increasingly apparent, such as an over-reliance on short-term imprisonment and a lack of provisions for fines. Additionally, China’s criminal law does not stipulate a mechanism for the eradication of criminal records, and the mechanism for dealing with minor offenses is not well-established, leading to overly severe outcome concerning criminal records and subsequent consequences of minor offenses.
The third part explores the legislative pathways for minor offense control in China. This section mainly discusses two potential pathways for controlling minor offenses in China. The first relies on criminal legislation to lower the threshold for crimes, continue expanding the crime circle. It also includes establishing a funnel-shaped judicial system in order to establish a mechanism for the eradication of criminal records and a criminal punishment system specifically designed for minor offenses to achieve control over minor crimes. The second pathway maintains the binary system that distinguishes between illegal acts and crimes, and through non-criminal legislative means, establish a Security Measures Law to control minor offenses. This article advocates for the latter approach and, by comparing the advantages and disadvantages of different pathways and legislative models, explores the benefits and feasibility of establishing such Security Measures law.