Whether artificial intelligence can have the same "subjectivity" status as human beings in criminal law cannot be found in the criminal law theory, and it needs to be based on relevant cognitive science, otherwise it will fall into the dilemma of circular argument. According to the five-level theory of cognitive science, AI is only a simple simulation of human cognition at the lower-order cognitive levels of the neural and mental hierarchies; At the level of language-level cognition, which is the intermediate link between higher-order and lower-order cognition, there is an essential difference between the artificial language of AI and natural language; At the higher-order cognitive levels of the thinking and cultural hierarchies, current AI has not shown itself to be capable of thinking or generating culture. Combined with the "the Chinese room argument", the AI does not have the "recognition ability" and "control ability" in criminal law theory. In terms of recognition ability, although the recognition of the objective world by AI sensors can mimic human cognition, they are not able to process the recognized information in conjunction with their own "behaviors" to derive the social significance of those "behaviors". In terms of control capability, the "control capability" demonstrated by AI is essentially the ability to execute algorithms, which is still essentially a form of human control rather than AI "self-control". Therefore, in the present and foreseeable future, AI does not have a "subjectivity" of criminal law, and current criminal law theory need not overreact to so-called "strong artificial intelligence". Elevating AI to human heights undermines human dignity. "Delete data, modify procedures, permanent destruction" is not a penalty. If it is written into the criminal law also has the possibility of human application. Therefore, in the present and foreseeable future, the impact of AI on the theory of criminal law is mainly due to the fact that it leads to the exacerbation of traditional societal risks. Criminal law theory should treat them as "objects" and "instruments" of crime in conjunction with the theory of risk criminal law. When AI is used as an object of crime, it exists in the form of property, works, etc., and care should be taken to distinguish between the AI itself and the carrier of the AI in the process of judicial determination; When it is used as an instrument of crime, it can lead to results such as widening the consequences of the crime and making it more difficult to investigate.