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Principle of Crime and Penalty Defined by Law and the Evolvement of Criminal Law in Modern China

Author: MengHong
Tutor: HeQinHua
School: East China University of Politics and Law
Course: Legal History
Keywords: the principle of a Legally Prescribed Punishment for a specified Crime Chinese neoteric criminal law variance legal text
CLC: D924.1
Type: PhD thesis
Year: 2007
Downloads: 1597
Quote: 4
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“Nullum crimen sine lege, nulla poena sine lege”or the principle of“no crime or penalty without a law”(hereinafter referred to as the“Principle”), has long been the symbol of modern criminal law. Acceptance of such a principle in legislation, i.e., converting the legal principle into a law, indicates that a country has formally acknowledged the rule of law in criminal justice, which is deemed as an essential precondition to realization of the rule of law in criminal justice, although it’s not enough for achieving that goal completely. The formations and existences of the Principle, which are based on certain social conditions in respect of thought, economy, community and notion, have taken different forms from country to country, due to the impacts of a nation’s legal tradition. From a historical perspective, in western countries which were the seedbeds of the Principle, the Principle was initially established with thoughts of“nullum crimen sine lege, nulla poena sine lege”prior to developing the relevant doctrines and legislations. As a result, the Principle in western countries is not only reflected in their legislations and judicial practices, but in their relevant thoughts as well.In modern China, the Principle was introduced from abroad as the overdeveloped feudal legal system coming into being since Qin and Han Dynasties of some 2000 years ago has caused lack of foundation to establish the Principle and thus there was no room for its growth in Chinese history. At the end of Qing Dynasty, China was forced to open up its door to the outside world by western gunboats and began to bring itself into the world development system. The Principle, as byproduct of invasion by western imperialist powers, was introduced into mainland China, Hong Kong, Macao and Taiwan region respectively, which gave rise to revolution in Chinese criminal law, i.e., a transformation from feudal criminal law to modern criminal law. Due to historic reasons, the evolution of criminal law in modern China has gone through the following four parallel paths independently: i) from the criminal law reform at the end of Qing Dynasty to criminal law in the period of Republic of China and then to contemporary criminal law in Taiwan region; ii) from the criminal law of CPC’s revolutionary base areas to that of new China and then to current PRC’s criminal law; iii) the criminal law of Macao; iv) the criminal law of Hong Kong. The said fours paths, being mainly reflected in the legislations, have their own characteristics by taking different attitudes toward the Principle, while the developments of judicial practices, in particular the thoughts of the Principle has fallen behind the penal legislations. However, by the end of 20th Century, the criminal laws in China’s above four jurisdictions have reached the same goal by different routes: they all accomplished the ultimate purpose of establishing the Principle in all respects from rules to theories and thoughts, and on the whole they all completed the transformation of the Principle from formal legality to substantial legality.First-time adoption of the Principle among all the criminal laws promulgated by China’s central governments in history was the New Criminal Code of Qing Dynasty which was the outcome of the criminal law reform in late Qing Dynasty. The approach to the said reform mainly followed the modern criminal laws of western counties and their criminal thoughts, in particular the Reich Criminal Code introduced from Japan, therefore the New Criminal Code of Qing Dynasty, whether in form or substance, revealed typical features of the Continental Legal System. The Principle, on the one hand, remained a symbol in China’s legislative history because the new criminal law was unable to put into effect with the perdition of Qing Dynasty, but on the other hand, the legislative reflection of the Principle itself was of epoch-making significance: it represented the modernization of China’s criminal law and was considered as a milestone in the history of China’s codification of criminal law.The period of Republic of China (1912—1949) was the formation stage of China’s modern criminal law, during which the Principle was accepted in legislation all the time though the central government was replaced frequently and thus different criminal codes were put into place for this short period of time. During the period of Nanking Temporary Government, Mr. Sun Yat-sen who was appointed Temporary President of Republic of China strived to realize the ideal of“Rule of Law”by promulgating some decrees containing criminal penalties which embodied the core value of the Principle——“Protection of Human Rights”. The later Temporary New Criminal Code of Republic of China imitated the model of western criminal laws by removing certain provisions of the New Criminal Code of Qing Dynasty which were inconsistent with the republic regime of modern China and as a result further advanced the developments in China’s modernization of criminal law starting from the end of Qing Dynasty. In an attempt to restore the monarch to his throne, Yuan Shikai Government issued the Supplementary Rules to Temporary New Criminal Code and there were an abundance of single penal laws which indicated reverting to old times in legislation by including ideas of autocracy, rule by man and some feudal ethical codes into them while they didn’t delete relevant wording of the Principle. The Criminal Code of Republic of China, first promulgated in 1928 and amended in 1935 by the Nanking National Government included provisions in favor of the Principle and established the fundamental status of the Principle in criminal law, which signified that China’s penal legislation had reached a considerable level of keeping pace with the developments of western criminal laws in form. In addition, the Nanking National Government also promulgated certain single penal laws together with legal interpretations and precedents having binding force in judicial practices, which as a whole maintained the guiding role of the Principle. But at the same time, in order to consolidate its governance and crack down on revolutionary activities by means of maintaining existing constitutional and legal regime, the NankingNationalGovernmentwhichrepresentedthelandlord/comprador/bureaucrat-capitalist bloc promulgated a number of special criminal laws and also passed some secret decrees with an aim to preventing, restricting and disorganize the CPC, showing its deviation from the Principle to some extent.In the regions where China’s central government lost its control, the criminal law, in its own way, broke away from China’s ancient penal code and opened up its road to modernization. In order to consolidate the Red Political Power, suppress the counter-revolutionary activities, safeguard the rights of peasants, workers and other manual labor people and back up the military actions by revolutionary army, CPC’s revolutionary base areas adopted relevant criminal rules and policies which gradually formed the criminal law in those areas. Being completely different from both the feudal penal code in Chinese history and the official criminal law simultaneously applied in most of areas in mainland China at that time, the criminal law in revolutionary base areas had its unique features and constituted the historic sources of penal legislation of new China.Reviewing criminal laws of base areas in different times, all of them didn’t directly stipulate or exclude the principle of a Legally Prescribed Punishment for a specified Crime. All the provisions excluded customary laws in the form of statute laws formally; most provisions stipulated the standard of specified crime and the scale of legal crime, and even stipulated the retrospective effect which correlates the principle of a Legally Prescribed Punishment for a specified Crime contently. However, the initial legislators didn’t have a clear understanding of this principle, didn’t know its importance to criminal law, or the relationship between this principle and analogy, and had a politicalization with the reference of corralated law of U.S.S.R.The prescription of criminal analogy in specific laws revealed the initial legislators’faint attitude to this principle of a Legally Prescribed Punishment for a specified Crime.Neoteric criminal law of Taiwan, Macau and Hong Kong were rooted from colonization. Because of the influence of suzerains’law, all of them had character of colonization strongly, accepted and applied the criminal law of Japan, Portugal and Britain separately. At the same time, as the byproducts of colonization, these areas’criminal laws began the process of modernization which was earlier than main part’s criminal law under Chinese regime, and wholly accepted principles and systems of western neoteric criminal laws in different ways. These laws were close to suzerains’legal systems, and independent on Chinese main criminal law. They abandoned wild and lagging element in Chinese ancient criminal law, opened the window of neoteric civilization of criminal legal system.Taiwan had been colonized by Japan for 51 years from 1895 to 1945.Taiwan’s criminal law was realized modernization passively but branded with colonized legal system simultaneously. Although Japan took different legal policy to different areas and different folks in Taiwan, two of Japanese neoteric criminal law, which were applied in Taiwan, had effective functions to the criminal law’s transference from ancient to neoteric. Comparing with the original Chinese ancient criminal law, it took totally new content to Taiwan that the new style of General principles and partly principles, abolishing excruciation and then using life punishment, freedom punishment, wealth punishment and qualification punishment, appearing the principle of a Legally Prescribed Punishment for a specified Crime and its derived principle--doctrine of retroactivity, implementing individual liability strictly, etc. In Macau, Portuguese criminal law whose original version is French Penal Code in 1810 had set the station of the principle of a Legally Prescribed Punishment for a specified Crime in it. The Portugal Penal Code in 1886, special to its legislation form, prescribed this principle definitely in fifth provision, and provided against analogy in the eighteenth provision. Considering every country’s Penal Code in the Civil Law system, it is a general rule for this principle’s legislation, but only Portugal Penal Code clearly prescribed prohibiting application by analogy, except simultaneously prescribing an act is not a crime unless the law says it is one.Hong Kong’s criminal law transplanted the special mode of a Legally Prescribed Punishment for a specified Crime in England, which strictly executed that any act that no explicit stipulations of law deems a crime is not to be convicted or given punishment. And its criminal law didn’t exclude the effect of legal precedent, and put the principle of precedent in the important place. In the practical operation of Hong Kong’s criminal law, the principle of a Legally Prescribed Punishment for a specified Crime used criminal statute law and criminal customary law simultaneously. It overcame the inflexibility of statue law, but also solved the shortage of strong retractility of case law, connected the confirmation and flexibility of criminal law.Chinese neoteric criminal law had great influence to modern criminal law. In modern times, five legal structures formed by Chinese neoteric criminal law had been changed due to alternation of regime. Macau and Hong Kong continued neoteric criminal law, they didn’t change the applicable area but added more native element; as a principal part under the control of regime ,criminal law of the Republic of China continued to develop in Taiwan after Kuomintang fell back on Taiwan in 1949 (Taiwan had used the criminal law since being recovered in 1945); the criminal law in devious revolutionary base area continued to develop in main land after 1949 because of obtaining regime, which revealed the inheritance and development of Chinese modern criminal law to Chinese neoteric criminal law. The criminal law in Macau, Hong Kong and Taiwan developed calmly thereinto, the principle of a Legally Prescribed Punishment for a specified Crime had been insisted since neoteric except adding and decreasing corresponding content due to development of times. While in People’s Republic of China, this principle was established its basic principle statue in 1997 because its criminal law developed unfavorably due to political element.The masterstroke of this paper is the principle of a Legally Prescribed Punishment for a specified Crime. After reviewing the content of neoteric criminal laws in Chinese different areas, whether main part criminal law in the area under the control of central regime or the district criminal law in the area out of control of central regime, never came through the pullulated moment such as hundreds years’theory accumulation and conception resolution in the development of western neoteric criminal law. Chinese neoteric criminal law transformed in the disjoint between legislation and practice, antinomy between ideal and reality. Although the transformation is unstable, full of conflict and developed differently in different areas, it accepted western criminal law’s main culture furthest, structured neoteric criminal criterion system in the fastest speed, which took the foundation of Chinese criminal law’s modernization. It is the historical value of transformation movement of Chinese neoteric criminal law.

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